Fototwics

Fototwics, Inc.
Terms of Service

These Terms of Service are effective on March 14, 2014.

This is a legal contract. These Terms of Service (the “Terms”) affect your legal rights and creates certain obligations as a contract between you the user of the Service (as defined below), and Fototwics (as defined below). Please review these terms like you would review any other contract to which you are a party. Because the Service is made publically available, Fototwics cannot enter into individual contracts will all of the users of the Service. Accordingly, as is custom in our industry, the burden is placed on you to review these Terms and make an independent decision on whether you agree to these Terms or not. If you do not understand these Terms, or if you do not agree to be contractually bound by all of these Terms, do not use the Service. If you agree to be contractually bound by these Terms, proceed to use the Service, it being explicitly agreed that your use of the Service, in any manner whatsoever, serves as your signature to this contract, which includes the requirement that any disputes between the parties shall be resolved by arbitration, as explained more fully below.

The corresponding Privacy Policy is incorporated by reference and made a part of this Contract.

We reserve the right, in our sole discretion, to change these Terms of Service ("Updated Terms") from time to time. You agree that we may notify you of the Updated Terms by posting them on the Service, and that your use of the Service after the effective date of the Updated Terms constitutes your agreement to the Updated Terms. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Service from that point forward. These Terms of Service will govern any disputes arising before the effective date of the Updated Terms.

The Parties

The Service is owned or controlled by Fototwics, Inc. and the terms herein apply to Fototwics, Inc. its parents, subsidiaries, affiliates, related companies, officers, directors, employees, servants, agents, representatives, predecessors, successors, administrators, heirs, executors, assigns, partners, and licensors (collectively, “Fototwics”, “we”, “us”, or “our”).

The Service is intended to be used by you, the user (the “User”, “you”, “your”, or “yours”), in accordance with these Terms.

The Service

You may access the Fototwics service through many different platforms, whether they now exist or may be later developed. These platforms include, but are not limited to, the Fototwics website, any Fototwics applications (including mobile and “mini” applications), Short Message Service(s) (“SMS”), Application Programming Interface(s) (“API”), email notifications, buttons, widgets, and any other method that provides access to the Fototwics service, and all of these platforms are hereinafter collectively referred to as the “Service”.

Your License to use the Service

Fototwics gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software that is provided to you by Fototwics as part of the Service. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by Fototwics, in the manner permitted by these Terms. This site and its components are offered for informational purposes only; this site shall not be responsible or liable for the accuracy, usefulness or availability of any information transmitted or made available via the site, and shall not be responsible or liable for any error or omissions in that information.

Upon termination of your account, all licenses and other rights granted to you in these Terms of Service will immediately cease.

We reserve the right to refuse access to the Service to anyone for any reason at any time.

Termination

We reserve the right to modify or terminate the Service or your access to the Service for any reason, without notice, at any time, and without liability to you. Violation of these Terms may, in Fototwics's sole discretion, result in termination of your Fototwics account. If you violate the letter or spirit of these Terms, encourage or facilitate violations of these Terms of Service or any other Fototwics terms, or otherwise create risk or possible legal exposure for Fototwics, as determined in our sole discretion, we can stop providing all or part of the Service to you, without notice.

You can deactivate your Fototwics account by logging into the Service, accessing your Account Settings, and clicking on “Deactivate Account”.

If we terminate your access to the Service or you deactivate your account, your photos, comments, likes, friendships, profile, trending, alerts, and all other data will no longer be accessible through your account (e.g., users will not be able to navigate to your username and view your photos), but those materials and data may persist and appear within the Service (e.g., if your content has been re-shared by others).

Your Use of the Service

You must be at least 13 years old to use the Service.

You are responsible for any activity that occurs through your account and you agree you will not sell, transfer, license or assign your account, followers, username, or any account rights, without our written consent. Fototwics prohibits the creation of and you agree that you will not create an account for anyone other than yourself, unless you are provided with written consent to create an account on behalf of another. You are responsible for keeping your password secret and secure. We encourage you to use passwords that use a combination of characters and symbols to keep the password secret and secure. Fototwics cannot and will not be liable for any loss or damage arising from your failure to keep your password secret and secure.

You also represent that all information you provide or provided to Fototwics upon registration and at all other times will be true, accurate, current and complete and you agree to update your information as necessary to maintain its truth and accuracy. You will keep your contact information accurate and up-to-date

Username

We reserve the right to force forfeiture of any username for any reason. We reserve the right to provide another user a username that was previously forfeited or refused access. We reserve the right to remove or reclaim a username or identifier for your account if we believe it is appropriate, including, but not limited to when a trademark owner complains about a username.

Content

You are solely responsible for your conduct and the SMS, API, email notifications, applications, buttons, widgets, data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links, comments, any other content and material, and any information, text, graphics, photos or other materials posted, uploaded, downloaded or appearing on or through the Service (collectively, "Content").

Because our Service is primarily designed to help you share information with the world, most of the information you provide us is information you are asking us to make public. When you publish Content or information you are allowing everyone in the world to access and use that information, and to associate it with you including your name and profile picture. You acknowledge and agree that your relationship with Fototwics is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any Content does not place Fototwics in a position that is any different from the position held by members of the general public, including with regard to your Content.

We are relying on certain representations and warranties about the Content. Specifically, you represent and warrant that:

(i) you own the Content transmitted by you on or through the Service;

(ii) the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights;

(iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service; and

(iv) you have the legal right and capacity to enter into these Terms in your jurisdiction.

We are relying on these representations and warranties above because Fototwics cannot and will not be responsible for the Content posted on the Service and you use the Service at your own risk. Fototwics does not prescreen, monitor, edit, remove any Content, or endorse Content posted within the Service. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the Service or endorse any opinions expressed via the Service including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service or broadcast elsewhere.

Because Fototwics is relying on your representations and warranties above, you may bear legal responsibility for the Content if it violates these Terms. All Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such Content.

You License Fototwics to use your Content

Fototwics also does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Fototwics a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use, reproduce, copy, process, adapt, modify, publish, transmit, display and distribute the Content that you post on or through the Service to any and all media or distribution methods (now known or later developed). You agree that this license includes the right for Fototwics to provide, promote, and improve the Service and to make Content submitted to or through the Service available to other companies, organizations or individuals who partner with Fototwics for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use. We may modify or adapt your Content to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media. Such additional uses by Fototwics, or other companies, organizations or individuals who partner with Fototwics, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Service.

You understand that your Content may be syndicated, broadcast, distributed, or published by third parties and if you do not have the right to submit Content for such use, it may subject you to liability. Fototwics will not be responsible or liable for any use of your Content by Fototwics in accordance with these Terms. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit.

This License for Content with intellectual property rights ends when you delete such content or delete your account, unless your content has been shared with others, and they have not deleted it. Backup copies of such content may, but we cannot guarantee that they will, be maintained for a reasonable period of time to comply with legal requirements.

Again, any and all Content will be non-confidential and non-proprietary and we will not be liable for any use or disclosure of Content.

We may, but have no obligation to, remove, edit, block, and/or monitor Content or accounts containing Content that we determine in our sole discretion violates these Terms of Service.

Your Interaction with other Users

You are solely responsible for your interaction with other users of the Service, whether online or offline. You agree that Fototwics is not responsible or liable for the conduct of any user. Fototwics reserves the right, but has no obligation, to monitor or become involved in disputes between you and other users.

You must not defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities and you must not post private or confidential information via the Service, including, without limitation, your or any other person's credit card information, social security or alternate national identity numbers, non-public phone numbers or non-public email addresses.

You must not attempt to restrict another user from using or enjoying the Service and you must not interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You may not inject content or code or otherwise alter or interfere with the way any Fototwics page is rendered or displayed in a user's browser or device.

Unauthorized and Illegal Uses Prohibited

You may not use the Service for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Service and your Content (defined below), including but not limited to, copyright laws.

You may not post violent, nude, partially nude, discriminatory, unlawful, infringing, hateful, pornographic or sexually suggestive photos or other content via the Service.

You understand that by using the Service, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive.

Technical Integrity

You may not do any of the following while accessing or using the Service: (i) access, tamper with, or use non-public areas of the Service, Fototwics’s computer systems, or the technical delivery systems of Fototwics’s providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) access or search or attempt to access or search the Service by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Fototwics (and only pursuant to those terms and conditions), unless you have been specifically allowed to do so in a separate agreement with Fototwics; (iv) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Service to send altered, deceptive or false source-identifying information; or (v) interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Service, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Service

You must not create or submit commercial or harassing communications, such as unwanted email, comments, likes or other forms of commercial or harassing communications (a/k/a "spam") to any Fototwics users.

You agree that you will not solicit, collect or use the login credentials of other Fototwics users.

You must not change, modify, adapt or alter the Service or change, modify or alter another website so as to falsely imply that it is associated with the Service or Fototwics.

You must not access Fototwics's private API by means other than those permitted by Fototwics.

You must not create accounts with the Service through unauthorized means, including but not limited to, by using an automated device, script, bot, spider, crawler or scraper. We prohibit crawling, scraping, caching or otherwise accessing any content on the Service via automated means, including but not limited to, user profiles and photos (except as may be the result of standard search engine protocols or technologies used by a search engine with Fototwics's express consent).

Dealings with Third Parties

There may be links from the Service or the Content that link you to third-parties (the “Third Party Links”). There may also be applications that facilitate the sharing of information between the Service and third-party services (the “Third Party Applications”) (the “Third Party Links” and the “Third Party Applications” collectively referred to as the “Third Party Outlets”). You use Third Party Outlets at your own risk and by using such Third Party Outlets, you are consenting to the access of your information on the Service and the sharing of that information, including your personal information. Fototwics does not control any of these Third Party Outlets or third-party services and therefore, you expressly acknowledge and agree that Fototwics is in no way responsible or liable for any such Third Party Outlets or third-party services. You will hold Fototwics harmless for any of your dealings with third-parties.

Data Charges

Your use of the Service may result in data charges and you shall remain responsible for all data charges incurred through your use of the Service.

Advertisements, Promotions, and Endorsements

By using the Service, you agree to Fototwics’s display of advertisements, promotions, and/or endorsements, which may appear in connection with, or within, your Content. We may not identify advertisements, promotions or advertisements as such even though Fototwics may be compensated for such.

Intellectual property of Fototwics

The Service contains content owned or licensed by Fototwics ("Fototwics Content"). Fototwics Content is protected by copyright, trademark, patent, trade secret and other laws (“Fototwics IP”). Fototwics owns and retains all rights in the Fototwics Content and the Fototwics IP. You will not remove, alter or conceal any Fototwics IP or other proprietary rights notices and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Fototwics Content or Fototwics IP, without the prior written permission of Fototwics.

Fototwics does not accept materials or ideas from its users. If you choose to send us content, information, ideas, suggestions, or other materials through the Service or another form of correspondence or communication, Fototwics is free to use such for any purposes whatsoever, including, without limitation, developing and marketing products, incorporating such into the Fototwics Conent or Fototwics IP, and the Service, without any liability or payment of any kind to you.

Fototwics is not a Back-up Service and your Access to Fototwics is not Guaranteed

There will be occasions when the Service may be interrupted and you do not have access to your Content or the Service. Fototwics also reserves the right to remove any Content without prior notice. You should therefore maintain your own backup of all Content and not rely on Fototwics to maintain, backup, store, and/or at all times provide access to your Content. Fototwics will not be liable for any modification, suspension, or discontinuation of the Service, or the loss of any Content. You also acknowledge that the submission of Content or other information may not be secure as breaches of security may occur.

Reporting Copyright and Other IP Violations

If you infringe other people's intellectual property rights, it is deemed a violation of these Terms. We reserve the right to remove Content alleged to be infringing without prior notice, at our sole discretion, and without liability to you. If you believe that your content has been copied in a way that constitutes copyright infringement, please contact us.

Disclaimer of Warranties

THE SERVICE, INCLUDING, WITHOUT LIMITATION, FOTOTWICS CONTENT, IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, FOTOTWICS DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SERVICE; (B) THE FOTOTWICS CONTENT; (C) THE CONTENT; OR (D) SECURITY ASSOCIATED WITH THE USE OF THE SERVICE. IN ADDITION, FOTOTWICS HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.

FOTOTWICS DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ERROR-FREE, THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE OR THE SERVER THAT MAKES THE SERVICE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES.

FOTOTWICS DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION ON THE SERVICE IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK.

FOTOTWICS DOES NOT WARRANT THAT YOUR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND FOTOTWICS SPECIFICALLY DISCLAIMS SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO YOU AND THESE TERMS OF SERVICE.

BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.

FOTOTWICS SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.

No advice or information, whether oral or written, obtained from the Fototwics Entities or through the Service, will create any warranty not expressly made herein.

Limitation of Liability; Waiver

UNDER NO CIRCUMSTANCES WILL FOTOTWICS BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SERVICE; (B) THE FOTOTWICS CONTENT; (C) THE CONTENT; (D) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICE; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY FOTOTWICS OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY'S USE OF THE SERVICE; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) ANY ERRORS OR OMISSIONS IN THE SERVICE'S OPERATION; OR (H) ANY DAMAGE TO ANY USER'S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF FOTOTWICS HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL FOTOTWICS BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

IN NO EVENT WILL FOTOTWICS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100.00).

YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF FOTOTWICS'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY FOTOTWICS, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE PUBLICATION, USE, DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY FOTOTWICS.

BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF ANY LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES THAT A CREDITOR (SUCH AS YOURSELF) CANNOT ENTER INTO A GENERAL RELEASE FOR UNKNOWN CLAIMS (WHICH MAY BE IN YOUR FAVOR), AND WHICH UNKNOWN CLAIMS, IF KNOWN TO YOU, MAY MATERIALY AFFECT THE SETTLEMENT (YOU’RE YOUR AGREEMENT TO THESE TERMS OF SERVICE BY ACCESSING THE SERVICE) WITH THE DEBTOR (SUCH AS FOTOTWICS).

FOTOTWICS IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE FOTOTWICS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.

Indemnification

You (and also any third party for whom you operate an account or activity on the Service) agree to defend, indemnify and hold Fototwics harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney's fees and costs, arising out of or in any way connected with any of the following (i) your Content; (ii) your access to or use of the Service; (iii) your breach or alleged breach of these Terms; (iv) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (v) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (vi) any misrepresentation made by you. You will cooperate as fully required by Fototwics in the defense of any claim. Fototwics reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Fototwics.

Arbitration

Except if you opt-out or for disputes related to Fototwics IP (“Excluded Disputes”), you agree that all disputes between you and Fototwics (whether or not such dispute involves a third party) with regard to your relationship with Fototwics, including without limitation disputes related to these Terms, your use of the Service, and/or rights of privacy and/or publicity, will be resolved by binding, individual arbitration under the American Arbitration Association's rules for arbitration of consumer-related disputes and you and Fototwics hereby expressly waive trial by jury. Neither you nor Fototwics will participate in a class action or class-wide arbitration for any claims covered by this agreement. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if Fototwics is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.

You may opt out of this agreement to arbitrate. If you do so, neither you nor Fototwics can require the other to participate in an arbitration proceeding. To opt out, you must notify Fototwics in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out:

Fototwics, Inc., ATTN: Arbitration Opt-out c/o Dev R. Dhamija, Esq., 2545 Hempstead Tpke., Suite 403, East Meadow, NY.

You must include your name and residence address, the email address you use for your Fototwics account, and a clear statement that you want to opt out of this arbitration agreement.

This arbitration agreement will survive the termination of your relationship with Fototwics.

Fototwics reserves the right to change this dispute resolution provision, but any such changes will not apply to disputes arising before the effective date of the amendment. This dispute resolution provision will survive the termination of any or all of your transactions with Fototwics.

Time Limitation on Claims

You agree that any claim you may have arising out of or related to your relationship with Fototwics must be filed within one year after such claim arose; otherwise, your claim is permanently barred.

Governing Law & Venue

These Terms of Service are governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. For any action at law or in equity relating to the arbitration provision of these Terms of Service, the Excluded Disputes or if you opt out of the agreement to arbitrate, you agree to resolve any dispute you have with Fototwics exclusively in a state or federal court located in New York, New York, and to submit to the personal jurisdiction of the courts located in New York, New York for the purpose of litigating all such disputes.

Miscellaneous

Severability. If any provision of these Terms of Service is held to be unlawful, void, or for any reason unenforceable during arbitration or by a court of competent jurisdiction, then that provision will be deemed severable from these Terms of Service and will not affect the validity and enforceability of any remaining provisions.

No Waiver. Fototwics's failure to insist upon or enforce strict performance of any provision of these Terms will not be construed as a waiver of any provision or right. No waiver of any of these Terms will be deemed a further or continuing waiver of such term or condition or any other term or condition.

Entire Agreement. These Terms of Service constitute the entire agreement between you and Fototwics and governs your use of the Service, superseding any prior agreements between you and Fototwics.

Authority to Execute. If you are using the Service on behalf of a legal entity, you represent that you are authorized to enter into an agreement on behalf of that legal entity.

Assignment. You will not assign the Terms of Service or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Fototwics. Any purported assignment or delegation by you without the appropriate prior written consent of Fototwics will be null and void. Fototwics may assign these Terms of Service or any rights hereunder without your consent.

No Modification. Neither the course of conduct between the parties nor trade practice will act to modify the Terms of Service.

Third-Party Beneficiaries. These Terms of Service do not confer any third-party beneficiary rights.

Headings. The headings contained herein are provided for convenience and shall have no bearing on the meaning, construction or interpretation of these Terms.