Last Updated: April, 2020

Please carefully read these Terms and Conditions (this “Agreement”). This Agreement between you and ImageKeeper LLC (“ImageKeeper”, “Company”, “us”, “our”, or “we”) governs your use of www.imagekeeper.com and any other ImageKeeper-operated websites and applications that link to this Agreement (collectively, the “Platform”) and the training materials, content, and services available through the Platform (collectively, Platform and all related materials, content, and services are referred to herein as the “Services”).

By accessing the SERVICES, you agree to be bound by this Agreement WITHOUT ANY MODIFICATION.  DO NOT ACCESS OR USE THE SERVICES IN ANY WAY IF YOU DO NOT AGREE TO THIS AGREEMENT.  IF YOU ARE ACCESSING AND USING THE SERVICES ON BEHALF OF AN ENTITY, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACT ON BEHALF OF SUCH ENTITY AND TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT.

IMPORTANT NOTICE: YOUR USE OF THE SERVICES IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 11, REQUIRING ALL CLAIMS TO BE RESOLVED VIA INDIVIDUAL BINDING ARBITRATION.

1.      Registration and Eligibility for Services

A.      Registration.

In order to utilize some of the Services’ features, you must register and create an account. In order to create an account, you must complete the registration process by providing ImageKeeper with complete and accurate information as prompted by the registration form, including contact information, and a username. You shall protect your password and take full responsibility for your own and third-party activities that occur under your account. You agree to notify ImageKeeper immediately of any unauthorized use of your account or any other breach of security. If you create an account on behalf of an entity, this Agreement binds both you and the entity.

B.      Refusal of Service.

ImageKeeper reserves the right, with or without notice, to terminate the account of, or refuse service to, any persons that violate this Agreement, violate any party’s intellectual property rights, abuse other users of the Services, misuse the Services, or otherwise engage in inappropriate conduct, as determined by ImageKeeper in its sole discretion.

C.      Information Submission and Age Restriction.

By submitting any information, including any User Content as defined below, through the Services, you represent and warrant that you are 18 years of age or older, and, if under the age of majority in your state, you are either an emancipated minor, or have obtained the legal consent of your parent or legal guardian to enter into this Agreement and use the Services. ImageKeeper does not intend to use the Services to collect any information from children under age 18. Pursuant to 47 U.S.C. § 230(d), you are notified that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. For information on providers of such services, contact your information technology professional.

D.      Electronic Communications.

By accepting this Agreement and using the Services, you consent to receive electronically all communications or notices sent by ImageKeeper with regard to the Services or this Agreement to any email address you provide to ImageKeeper . It is your responsibility to update your contact information provided to ImageKeeper . In order to receive electronic communications, you must have a working connection to the internet and meet any specifications required by your email service provider. ImageKeeper may send communications in a non-electronic format in ImageKeeper’s discretion.  Emails sent to any @imagekeeper.com email address are governed by our Privacy Policy https://www.imagekeeper.com/PrivacyPolicy .

2.      Revisions to this Agreement.

We may revise and update this Agreement from time to time, and will post the updated Agreement to the Services. Unless otherwise stated in the amended version of the Agreement, any changes to this Agreement will apply immediately upon posting. Other than updating the date at the top of the Agreement, we generally will not notify you of any such changes by email or other personal contact, but we reserve the right to do so. You should revisit these Terms on a regular basis as revised versions will be binding upon you.  Your continued use of this Services will constitute your agreement to any new provisions within the revised Agreement.

3.      Access to and Use of the Services; Proprietary Rights.

A.      Ownership.

All written content, videos, or other materials prepared and posted by ImageKeeper (not including User Content), and the Services design, layout, look, appearance, and graphics, as well as the trademarks, service marks, and logos contained on our Services (collectively, “ ImageKeeper Content ”) are owned by or licensed to ImageKeeper and are subject to copyright, trademark, and other intellectual property rights under the United States and foreign laws and international conventions. ImageKeeper reserves all rights not expressly granted in, and to, the Services and the ImageKeeper Content.

B.      Access and Use of the Services.

Subject to, and in accordance with, this Agreement, and contingent upon all required payments, ImageKeeper agrees to provide you with a non-exclusive, non-transferable account enabling you and/or your employees to access and use the Services for your personal or internal business needs only (and not for service bureau, time-sharing, or similar services).  Each user account is valid for one user only and may not be shared concurrently or otherwise by or among multiple users.  You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

You are not permitted to use, share or transfer access to the Services in excess of the usage limitations set forth in this Agreement or in any manner not expressly authorized by this Agreement or applicable law.  Unless multiple site subscriptions are purchased, the Services may only be used by your employees or your wholly-owned affiliated entities that are based at a single physical site or location. Your authorization to access and use the Services is automatically revoked if you violate any of this Agreement. ImageKeeper reserves the right to revoke your authorization to access or use the Services at any time for any reason. Except as otherwise provided in this Agreement, no part of the Services and no ImageKeeper Content may be copied, reproduced, uploaded, posted, publicly displayed, transmitted, or distributed in any way to any other computer, server, Services, or other medium for publication or distribution or for any commercial use without ImageKeeper’s prior express written consent. Your access to this Services is provided on a temporary basis with no guarantee for future availability.

C.      Services Availability.

We reserve the right to withdraw or amend th ese Platform , and any service or material we provide on the Platform , in our sole discretion without notice. There may be times when the Services is unavailable due to technical errors or for maintenance and support activities. We do not represent, warrant, or guarantee that the Services will always be available or is completely free of human or technological errors. We will not be liable if, for any reason, all or any part of the Platform are unavailable at any time or for any period.

You must provide the equipment and Internet connections necessary to access the Services at your own expense. We do not guarantee that the Services will operate with your computer, mobile device, internet service plans, or mobile provider service plans or with any particular computer or other piece of hardware, software, equipment, or device you install on or use with your computer.

D.      Security. 

You shall be solely responsible for the security, confidentiality and integrity of all information that you receive, transmit through or store on the Services.  You understand that we cannot and do not guarantee or warrant that files available for downloading from the Internet or the Platform will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Platform for any reconstruction of any lost data. No data transmission over the Internet can be guaranteed to be 100% safe. Thus, we cannot warrant that your information will be absolutely secure. You shall be solely responsible for any authorized or unauthorized access and use of your account by any person.  You have the affirmative responsibility to monitor and control access to your account information. 

E.      Payment; Automatic Renewal. 

You shall pay to ImageKeeper for use of the Services the annual or monthly subscription fee, volume or per use as set forth in the “Shopping Cart” located on the ImageKeeper Website, contract, software services agreement or other applicable order form agreed to by the parties, the first payment due and payable upon ordering of the subscription to the Services and each successive payment due and payable on or prior to the date of the annual or monthly anniversary of User’s ordering of the subscription to the Services (collectively, “Fees”).  ImageKeeper expressly reserves the right to change the Fees at any time, upon notice to User or by posting such change in Fees on ImageKeeper’s Website or advertising materials. If you do not cancel your subscription before your annual or monthly anniversary date, your subscription will be automatically renewed for another annual or monthly subscription period at the current subscription price. The renewal fee will automatically be charged to your credit card or other payment type, agreements, contracts on file with ImageKeeper. ImageKeeper does not guarantee refunds for lack of usage or dissatisfaction with the Services.

F.      Collection and Taxes. 

All Fees, Taxes, purchase prices, and other charges under this Agreement shall be billed to your credit or debit card, ACH or other payment method by ImageKeeper or its third-party service provider, if any, at the current international currency conversion rate.  You shall be responsible for and shall pay ImageKeeper all currency conversion charges, sales, use, value-added, personal property or other tax, duty or levy of any kind, including interest and penalties thereon (“Taxes”), whether imposed now or hereinafter by any governmental entity.  You shall promptly pay ImageKeeper in the event of any refusal of your credit or debit card issuer or other payment provider or institution to pay any amount to ImageKeeper for any reason.  You agree to pay interest at the rate equal to the lesser of 1.5% per month, or the maximum rate allowed by applicable law, on any outstanding balance, together with costs of collection, including attorneys’ fees and costs.  In the event you fail to pay any amount when due, ImageKeeper may immediately suspend or terminate this Agreement and your access to the Services.

G.      User Data after Termination.

In the event you cancel your subscription, you terminate this Agreement, or your access to the Services is otherwise revoked, you will no longer be able to access your user data through the Services. However, if requested within thirty (30) days after the effective date of such cancellation, termination, or revocation, ImageKeeper will make available to you for download a file of your user data in comma separated value (.csv) format. After such thirty-day period, ImageKeeper shall have no obligation to maintain or provide any user data and may thereafter, unless legally prohibited, delete all user data in its systems or otherwise in its possession or under its control. The cost to provide you the user data pursuant to this section shall be $100.00 or such other updated fee to be determined by ImageKeeper.

4.      User Representations; Restrictions on Use of Services.

You represent and warrant to ImageKeeper that: (a)  all information provided by you to ImageKeeper is truthful, accurate and complete; (b) You are an authorized signatory of the credit or debit card, ACH account or other payment method, if any, provided to ImageKeeper to pay the Fees, Taxes, purchase prices, and other charges; (c) You shall comply with all terms and conditions of this Agreement; (d) You have provided and will maintain accurate and complete registration information with ImageKeeper, including, without limitation, your legal name, address and telephone number; (e) Your access to and/or use of the Services does not and will not constitute a breach or violation of any other agreement, contract, terms of use, or similar policy or understanding to which you are or may be subject; (f) You will not use the Services to violate any statute, law, rule or regulation, to violate any agreement between ImageKeeper and you or to otherwise violate the legal rights of ImageKeeper or any third person; (g) You will not access or use the Services in order to gain competitive intelligence about ImageKeeper, the Services, or any product or service offered by ImageKeeper or to otherwise compete with ImageKeeper; and (h) You are in fact an authorized representative of the entity on behalf of which you purport to act .

In addition to complying with any other posted terms and conditions applicable to your use of the Services, you agree that when using the Services, you will not:

·       Use the Services or any ImageKeeper Content in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws, rules or regulations or any rights of any third parties, including without limitation, any law or right regarding any copyright, patent, trademark, trade secret, or other proprietary or property right, false advertising, telemarketing, unfair competition, defamation, invasion of privacy, rights of celebrity, or other federal or state law, rule, or regulation;

·       Delete, modify, or attempt to change or alter any of the ImageKeeper Content or notices on the Services;

·       Introduce into the Services any virus, rogue program, time bomb, drop dead device, back door, Trojan horse, worm or other malicious or destructive code, software routines, denial of service attack, or equipment components designed to permit unauthorized access to the Services, or to otherwise harm other users, ImageKeeper Content, or any third parties, or perform any such actions;

·       Use the Platform in any manner that could disable, overburden, damage, or impair the Platform or interfere with any other party’s use of the Platform, including their ability to engage in real time activities through the Platform;

·       Use the Services to commit fraud or conduct other unlawful activities;

·       Access or attempt to access any other person’s account, information, or content without permission;

·       Copy, modify, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Services is based;

·       Use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or scraping the information contained on the Services for any reason;

·       Frame or mirror any part of the Services;

·       Connect to or access any ImageKeeper computer system or network without authorization; or

·       Use the information in the Services to create or sell a similar service.

In order to protect the integrity of the Services, ImageKeeper reserves the right at any time in its sole discretion to block users from certain IP addresses from accessing the Services. You may not use any technologies or processes to circumvent any IP blocks or other mechanism put in place by ImageKeeper to limit, restrict, or prevent access to the Services.

5.      User-Generated Content.

The Services includes features that allow you to upload, submit, or send content through the Platform (e.g., reviews, ratings, photos, or comments) (“User Content”). This Section provides the terms and conditions governing your use of such features.

A.      User Obligations and License; Intellectual Property.

You alone own and are solely responsible for all User Content you post, upload, or otherwise transmit (collectively “Post”) through the Services and once Posted, it cannot always be withdrawn. You agree not to Post through the Services any User Content which is false, defamatory, infringes upon another party’s intellectual property, or is otherwise illegal. By Posting User Content on the Services, you warrant and represent that you have the right to post such information and that such information is truthful and accurate.

B.      License to User Content.

By submitting User Content to the Services, you grant, and represent and warrant that you have the right to grant, ImageKeeper a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sub-licensable, and transferable license to use, reproduce, distribute, create derivative works of, adapt, display, and perform User Content in all media now known or hereafter created without attribution for any purpose. You hereby waive all moral rights to User Content.

C.      Prohibited Content.

You agree that you will not use the Services to send, Post, or publish:

o    Any content that is obscene, defamatory, threatening, harassing, abusive, slanderous, racially or ethnically offensive, hateful, or embarrassing to any other person or entity;

o    Any review or rating that does not reflect your lawful, honest, and good faith opinion or discloses any material conflict of interest or relationship that might influence your opinion (e.g., if you are a paid endorser of a product that you review);

o    Any message, data, code, or software that would violate our, or any third party, proprietary, or intellectual property rights, including unauthorized copyright text, images, programs, trade secrets, or other confidential or proprietary information, or use trademarks or service marks in an infringing fashion;

o    Any personal information of a third party, or images that include a third party or depict a third party’s likeness, without the third party’s consent;

o    Any advertisements or solicitations of business, chain letters, pyramid schemes, or bulk e-mail lists or upload;

o    Any materials that violate, could cause us or a third party to violate, or encourage us or a third party to violate any applicable law, statute, ordinance, or regulation; or

o    Any content or communications intended to impersonate someone else.

D.      Your Responsibility for User Content.

Your User Content is your sole responsibility and you assume all risks associated with your Posted User Content. Under no circumstances will we be liable in any way for User Content or for any loss or damage of any kind incurred as a result of the use of any of User Content. ImageKeeper further reserves the right to monitor, delete or modify any User Content that it deems offensive, inappropriate, advertising, illegal, off-topic or which otherwise violates this Agreement.

E.      Communications Decency Act.

As provided in 47 U.S.C. § 230(c)(1), ImageKeeper is only a distributer, and not the publisher or speaker, of any User Content.  As such, ImageKeeper cannot be held liable for making available any User Content which may be false or inaccurate.  Any information or opinions contained in the User Content made available through the services are those of their respective authors alone.  ImageKeeper does not guarantee the accuracy, completeness, or truthfulness of any User Content.  Under no circumstances will ImageKeeper be responsible for any loss or damage resulting from any person’s reliance on any User Content.

F.      Reservation of Rights.

Subject to Section 13 below regarding the DMCA, ImageKeeper reserves the right to remove or not remove any User Content from the Services for any reason or no reason at all, in ImageKeeper’s sole discretion. This reservation includes the exclusive right to decide whether to publish, withdraw, postpone, or alter any User Content. ImageKeeper reserves the right, but does not undertake any affirmative obligation, to screen, monitor, or filter User Content.

G.      Information Storage and Access.

ImageKeeper reserves the right, in its sole discretion, to determine whether and how long to store User Content and user data in accordance with its Privacy Policy.  ImageKeeper will not be responsible for any liability related to the deletion or removal or any data or content maintained on the Services or ImageKeeper’s servers.

H.      Your Suggestions.

We welcome your comments regarding the Services and ImageKeeper Content, and our services. In addition to the license you grant to us, above, for User Content, if you elect to provide or make available suggestions, comments, ideas, improvements, or other information or materials (collectively, “Suggestions”) to us in connection with or related to the Services, ImageKeeper Content or our services (including any related technology), whether you send such Suggestions to us through the Services or through a separate communication channel, you grant us a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sub-licensable, and transferable license under any and all rights in and to the Suggestions to use, reproduce, distribute, create derivative works of, adapt, display, perform, and otherwise exploit, and to make, have made, sell, offer to sell, and import any products and services incorporating or based on, Suggestions in any manner. Please do not send us such information or materials if you do not wish to grant us the rights set forth in this Section.

6.      User Privacy.

The Services are governed by the ImageKeeper Privacy Policy which is located at https://www.imagekeeper.com/PrivacyPolicy. Please read the Privacy Policy before accessing the Services or providing any personal information through the Services.

7.      Changes to the Platform. 

We may update the content on the Platform from time to time, but its content is not necessarily complete or up-to-date.  Any of the material on the Platform may be out of date at any given time, and we are under no obligation to update such material.

We may from time to time develop and provide Platform updates, which may include upgrades, bug fixes, patches and other error corrections or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your mobile device settings, when your mobile device is connected to the internet either:

• the Application will automatically download and install all available Updates; or
• you may receive notice of or be prompted to download and install available Updates.

You will promptly download and install all Updates and acknowledge and agree that the Application or portions of it may not properly operate if you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.

8.      Third Party Websites and Services.

The Services may use or provide access to one or more third parties to process payments, process account or user registrations, or provide other services. Your interactions with any of these third parties is controlled by the terms and conditions imposed by those third parties. Any disputes arising regarding a third party’s services must be resolved directly between user and the third party. ImageKeeper disclaims all warranties or representations regarding any third-party services. ImageKeeper, in its sole discretion, and without notice to you or any user, may subcontract any services related to the Services to be performed by a third party.

9.      Disclaimer of Warranties.

EXCEPT AS WE OTHERWISE EXPRESSLY PROVIDE IN THIS AGREEMENT, THE PLATFORM AND SERVICES AND ALL RELATED SERVICES OF IMAGEKEEPER ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR SOLE RISK. WE, OUR THIRD-PARTY LICENSORS, AND BUSINESS PARTNERS DO NOT WARRANT OR MAKE ANY PROMISES REGARDING THE COMPLETENESS, CORRECTNESS, QUALITY, USEFULNESS, ACCURACY, AVAILABILITY, OR RELIABILITY OF: (i) YOUR USE OR THE RESULTS OF YOUR USE OF THE SERVICES; (ii) ANY ADVICE YOU GLEAN FROM THE SERVICES WHETHER PROVIDED BY US OR A THIRD PARTY; OR (iii) ANY OTHER CONTENT AVAILABLE THROUGH THE SERVICES. WE DO NOT PROMISE THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED. WE GIVE NO WARRANTY OF ANY KIND, INCLUDING ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WE, OUR THIRD-PARTY LICENSORS, AND BUSINESS PARTNERS WILL HAVE NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY, OR FAILURE TO STORE ANY COMMUNICATION, OR CONTENT. We do not make any representation or warranty concerning errors, omissions, delays, or defects in the Services or any information supplied to you via the Services, or that files available through Services are free of viruses, worms, Trojan horses, or other code that include or manifest contaminating or destructive characteristics. ImageKeeper is not a backup service for storing User Data, and ImageKeeper shall have no liability regarding any loss of User Data.  Users are solely responsible for creating backups of any User Data uploaded using the Online Services.  WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

WHILE IMAGEKEEPER USES COMMERCIALLY REASONABLE EFFORTS TO UPDATE THE SERVICES IN ACCORDANCE WITH continually changing laws, codes, standards, REQUIREMENTS AND regulations (COLLECTIVELY, “LAWS”), information and forms, USER must always examine THE most current laws, information and forms to ensure that USER IS in full compliance WITH ANY AND ALL APPLICABLE LAWS.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMERS, IMAGEKEEPER DOES NOT WARRANT THAT USE OF THE SERVICES WILL RESULT IN USER’S COMPLIANCE WITH ANY APPLICABLE LAWS, AND USER UNDERSTANDS AND ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR ENSURING ITS COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS.  BY PROVIDING THE SERVICES, IMAGEKEEPER IS NOT PROVIDING USER WITH LEGAL ADVICE.

THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THESE DISCLAIMERS MAY NOT APPLY TO YOU. ALL PRODUCTS YOU PURCHASE THROUGH THE SERVICES ARE SOLD BY THE SELLER AND NOT BY IMAGEKEEPER.

10.      Limitation of Liability.

A.      Services and Related Conduct.

NEITHER IMAGEKEEPER, NOR ANY OF ITS SUBSIDIARIES, AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, BUSINESS PARTNERS, LICENSORS, EMPLOYEES, ASSIGNEES, AND SUCCESSORS-IN-INTEREST (COLLECTIVELY, THE “IMAGEKEEPER PARTIES”), WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CLAIMS, DEMANDS, OR CAUSES OF ACTION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE DAMAGES OR LOST PROFITS, BODILY INJURY OR EMOTIONAL DISTRESS, OR REPUTATIONAL HARM, WHETHER BASEDON A CLAIM OR ACTION FO CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITTY OR CONTRIBUTION, OR OTHERWISE, RELATING TO THIS AGREEMENT, YOUR USE OF THE SERVICES, OR ANY INFORMATION YOU OBTAIN ON IT, OR ANY OTHER INTERACTION WITH THE SERVICES, AND YOU VOLUNTARILY AND UNEQUIVOCALLY WAIVE ANY LIABILITY OF THE IMAGEKEEPER PARTIES EVE IF YOU HAVE ADVISED IMAGEKEEPER PARTIES OF THE POSSIBILITY OF SUCH DAMANGES  SOME STATES DO NOT DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCDIENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU. IMAGEKEEPER IS NOT AN INSURER WITH REGARD TO PERFORMANCE OF THE SERVICES. THE DISCLAIMER OF WARRANTIES AND THE LIMITATION OF LIABILITY AND REMEDY ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR USER TO OBTAIN THE RIGHTS TO USE THE SERVICES AT THE SPECIFIED PRICE, IF ANY. USER AGREES TO ASSUME THE RISK FOR: (i) ALL LIABILITIES DISCLAIMED BY IMAGEKEEPER CONTAINED HEREIN; AND (ii) ALL ALLEGED DAMAGES IN EXCESS OF THE AMOUNT, IF ANY, OF THE LIMITED REMEDY PROVIDED HEREUNDER. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES WILL BE TO STOP USING THE SERVICES.

B.      ImageKeeper’s Maximum Liability for Any Claim.

IN ANY EVENT, THE MAXIMUM CUMULATIVE AND TOTAL LIABILITY OF THE IMAGEKEEPER PARTIES, FOR ANY CLAIMS WHATSOEVER RELATING IN ANY WAY TO THIS AGREEMENT OR YOUR USE OF THE SERVICES OR PURCHASE OF A PRODUCT THROUGH THE SERVICES OR YOUR USE OF ANY SUCH PRODUCT, INCLUDING CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND YOUR SOLE REMEDY, SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED ONE THOUSAND U.S. DOLLARS ($1000.00 USD).

C.      State Law Waiver.

In entering into this release you expressly waive any protections (whether statutory or otherwise), including Section 1542 of the California Civil Code if applicable (and any other comparable statute), that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release. Section 1542 of the California Civil Code reads as follows: “ A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

11.      Indemnification.

To the fullest extent permitted by applicable law, you agree to hold harmless, indemnify, and defend the ImageKeeper Parties from and against any and all claims (including liabilities, fines, damages, losses, judgments, awards, costs, expenses, and fees (including reasonable attorneys’ fees)) arising out of or relating to (i) your breach of any term or condition of this Agreement, (ii) your Posting of User Content (including any claims that such User Content violates or infringes any third party’s intellectual property, proprietary or privacy rights or rights of publicity), (iii) your acts or omissions during use of the Services, (iv) your unauthorized acts or omissions during use of the Services, or (v) your use of the Services.

You will have the right to defend and compromise such claim at your expense for the benefit of the ImageKeeper Parties; provided, however, you will not have the right to obligate the ImageKeeper Parties in any respect in connection with any such settlement without the written consent of the indemnified party; provided, further, ImageKeeper will have the right to participate in the defense of such claim at its expense using counsel of its choice. Notwithstanding the foregoing, if you fail to assume your obligation to defend or if ImageKeeper elects to defend such claims itself, the ImageKeeper Parties may do so to protect their interests and you will reimburse all costs incurred by the ImageKeeper Parties in connection with such defense.

12.      Agreement to Arbitrate and Prohibition on Class Actions.

A.      Choice of Law.

The validity, construction, and effect of this Agreement, the Platform, and the Services, will be governed by the laws of the state of Nevada, without giving effect to that state’s conflict of laws rules. Any legal suit, action or proceeding arising out of, or related to, these Terms of Use or the Platform shall be instituted exclusively in the federal courts of the United States or the courts of the State of Nevada, in each case located in the City of Las Vegas , and Clark County, although we retain the right to bring any suit, action or proceeding against you for breach of these Terms of Use in your country or county of residence, or any other relevant country or county. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

B.      Arbitration Procedure.

If you have any issue or dispute with the Company, you agree to first contact us at info@imagekeeper.com and attempt to resolve the dispute with us informally. All disputes arising out of, or relating to, this Agreement (including formation, performance, breach, enforceability, and validity of this Agreement), our operation of the Services, or a purchase made through the Services that are not resolved informally by shall be resolved by final and binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association that are in effect at the time of the arbitration, except as provided herein. The arbitration will be held in Las Vegas, Nevada or another location if ImageKeeper consents to such other location, which consent may be withheld in the sole discretion of ImageKeeper. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable.  The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees, and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

C.      Waiver of Class Actions; Jury Trials.

We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Class actions and class arbitrations are prohibited. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial.

D.      Limitation on Claims.

No action arising under this Agreement may be brought by User more than one (1) year after the cause of action has accrued.

E.      Injunctive Relief.

Without prejudice to the agreement to resolve disputes in binding arbitration set forth in the previous paragraph, either party to this Agreement may obtain preliminary injunctive relief in a court of competent jurisdiction, for the purpose of enforcing any of the terms of this Agreement pending a final determination in arbitration or permanent relief for the purpose of enforcing arbitral awards.

13.      Intellectual Property Rights of Third Parties

In the event you become aware of any material on the ImageKeeper platform that you believe infringes upon any copyright that you own or control, you may send a written notification of such alleged infringement to ImageKeeper’s agent for notification of claims of copyright in accordance with the following requirements:

1.      an electronic or physical signature of the person authorized to act on behalf of the owner of the exclusive right which is allegedly being infringed;

2.      identification of the copyrighted work that is alleged to have been infringed or, if more than one, a representative list;

3.      identification of the material which needs to be removed or altered and a sufficiently detailed description of the location of the protected material on the site (e.g., URL);

4.      a sufficient means for ImageKeeper to contact you, such as your address, telephone number, and e-mail address (if available);

5.      a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law and that you have authority to make such a statement; and

6.      a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright's owner's behalf.

The foregoing information shall be sent to the following address: DMCA@imagekeeper.com with the Subject Line “DMCA Notification.

After receiving a valid DMCA notification of claimed infringement, we will process and investigate the claim and will take appropriate actions under the DMCA, including expeditiously removing or disabling access to any material claimed to be infringing or claimed to be the subject of infringing activity. We will take reasonable steps promptly to notify the user who submitted the material that we have removed or disabled access to such material.  We reserve the right, at our sole discretion, to remove any User Content without prior notice.

Counter-Notification. If you posted or submitted material to ImageKeeper which ImageKeeper removed or disabled access to pursuant to a DMCA notification of claimed infringement, and you believe your material is not infringing and the material was removed or disabled as a result of a mistake or misidentification, you may send a counter-notification containing the following information in writing to ImageKeeper’ designated agent listed above:

1.      Your physical or electronic signature;

2.      Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;

3.      A statement under penalty of perjury that the you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and

4.      Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the your address is outside of the United States, for any judicial district in which ImageKeeper may be found, and that you will accept service of process from the person who provided the notification of claimed infringement or an agent of such person.

If a valid counter-notification is received by our designated agent, we will send a copy of the counter-notification to the original complaining party informing that person that we will replace the removed material or cease disabling access to it in 10 business days. Unless our designated agent first receives notice from the original complaining party that such party has filed an action seeking a court order to restrain the alleged infringement, we will replace or restore access to the material in 10 to 14 business days after our designated agent’s receipt of the counter-notification, at our sole discretion.

ImageKeeper reserves the right, in its sole discretion, to terminate accounts for users that are deemed to be repeat copyright infringers.

14.      Hyperlinks.

A link from the Services to a non-ImageKeeper website does not mean that ImageKeeper endorses or accepts any responsibility for the content, functioning, policies, or use of such Services, and you enter any such website at your own risk. It is your responsibility to take precautions to ensure that whatever website or other online materials that you select for use are free of viruses and other items of a destructive nature. Additionally, we suggest you review the linked site’s terms of service and privacy policy, and if you do not agree to be bound by the terms of that site, terminate your visit to that site. We are not responsible for the privacy policies and practices of the sites operated by our business partners or other third parties. ImageKeeper expressly disclaims any liability related to such sites. ImageKeeper also prohibits unauthorized hypertext links to the Services or the framing of any content available through the Services. ImageKeeper reserves the right to disable any unauthorized links or frames.

15.      Special Admonitions for International Use.

We make not claims that the Platform or Services is accessible or appropriate outside of the United States.  Access to the Platform may not be legal by certain persons or in certain countries.  If you access the Platform form outside the United States, you do so on your own initiative.  Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content.  Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside and to comply with any other local laws affecting the transmission or posting of content or affecting the privacy of persons.

The U.S. Department of the Treasury, through the Office of Foreign Assets Control ("OFAC"), prohibits U.S. companies from engaging in all or certain commercial activities with certain sanctioned countries (each a "Sanctioned Country") and certain individuals, organizations or entities, including without limitation, certain "Specially Designated Nationals" ("SDN") listed by OFAC. If you are located in a Sanctioned Country or are listed as an SDN, you are prohibited from registering or signing up with, subscribing to, or using the Services. If Company determines that the Services are being used by prohibited persons, Company will terminate any impacted accounts. Company reserves the right to also provide notification of any such usage to the US DOT/OFAC.

16.      Cooperation with Law Enforcement and Regulatory Bodies

We have the right to fully cooperate with any law enforcement authorities, regulatory agencies, or court order requesting or directing us to disclose the identity or other information of anyone sharing information with us through the Platform . YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY AND/OR ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER THE COMPANY OR SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

17.      Miscellaneous Terms.

A.      Term and Termination.

You may terminate this Agreement at any time by closing your account, discontinuing your use of the Services, and providing ImageKeeper with a notice of termination; however, you will not be entitled to any refund of any prepaid amounts. Please review this Agreement and our Privacy Policy for information about what we do with your account when terminated.  We may terminate your account, suspend your ability to use certain portions of the Services and/or ban you altogether from the Services for any or no reason, and without notice or liability of any kind.  Any such action could prevent you from accessing your account, the Services, your User Content, other content on the Services, or any other related information.  In the event of any termination of this Agreement, any provisions which by their nature should continue following termination shall so continue.

B.      Complete Agreement. 

This Agreement, along with the Privacy Policy, constitutes the entire agreement between you and ImageKeeper relating to your use of, and access to, this Services and supersedes any prior or contemporaneous agreements or representations. This Agreement may not be amended except as set forth herein.

C.      Independent Contractors. 

The parties and their respective personnel, are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.

D.      Force Majeure.

ImageKeeper shall not be liable for any failure to perform any services or other obligation related to this Agreement or the Services to the extent that performance of its obligations are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of ImageKeeper.

E.      Severability.

If any portion of this Agreement is ruled invalid or otherwise unenforceable, it shall be deemed amended in order to achieve as closely as possible the same effect as originally drafted. Any invalid or unenforceable portion should be construed as narrowly as possible in order to give effect to as much of the Agreement as possible.

F.      No Waivers.

Our failure to enforce or exercise any provision of this Agreement or related right will not constitute a waiver of that right or provision.  This Agreement shall not be modified by any course of performance or course of dealing.

G.      No Assignments and Transfers.

No rights or obligations under this Agreement may be assigned or transferred by you, either voluntarily or by operation of law, without our express prior written consent and in our sole discretion.

H.      No Third-Party Beneficiaries.

Subject to Sections 10 and 11, nothing in this Agreement will confer upon any person or entity, other than the parties, any rights, remedies, obligations, or liabilities whatsoever.

I.       Notices.

You shall provide any notices to us under this Agreement by e-mail or mail using the contact information provided below. Unless you tell us otherwise, or the law requires otherwise, you agree to receive all communications from us by e-mail or through posting notices to your account. You are responsible for providing ImageKeeper with up-to-date contact information, which you may do by updating your account information through the Services or by sending a message to us via the contact information provided below. You agree that all communications that we send to you electronically satisfy any legal requirement that a communication be in writing. You may print the communications for your records.

18.      Contact Us.

If you have any questions or need to contact us for any reason relating to this Agreement, please e-mail: info@imagekeeper.com.

You may also send us mail at the following address:

ImageKeeper, P.O. Box 27740, Las Vegas, NV 89126