Effective Date: March 2016
Welcome to the Great Big Photos website, located at www.greatbigpphotos.com (the “Website”), and maintained by Circle Graphics, Inc doing business as Great Big Photos (“GBP”). This Terms of Service (“TOS”) contains the terms and conditions that govern your use of the Website and the GBP Service (as defined below). This TOS describes your rights and responsibilities and what you can expect from the GBP Service. Use of the GBP Website constitutes your acceptance of and agreement to this TOS.
GBP reserves the right to add, delete and/or modify any of the terms and conditions contained in this TOS, at any time and in its sole discretion, by posting a change notice or a new agreement on the Website. In the event of substantive changes to this TOS, you may be notified by email. If any modification is unacceptable to you, your only recourse is to not use the Website and the GBP Service. Your continued use of the Website following posting of a change notice or new TOS on the Website will constitute binding acceptance of the changes.
1. The Great Big Photos Service.
GBP provides a number of Internet-based services through the Website (all such services, collectively, the “GBP Service”). One such service enables users to purchase products, including without limitation, canvas prints (collectively, “Products”). GBP may offer a number of other services on its Website, including without limitation, message boards, contests, and newsletters, which may change from time to time.
2. Use of the Website and Great Big Photos Service.
2.1 Eligibility. GBP will only knowingly provide the GBP Service to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may use the GBP Service only under the supervision of a parent or legal guardian who agrees to be bound by this TOS. The GBP Service is not intended for children under the age of 13.
2.2 Compliance with TOS and Applicable Law. You must comply with all of the terms and conditions of this TOS, the applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use the GBP Service and the Website.
2.3 Your License to Use the Website and the Great Big Photos Service.
(a) GBP solely and exclusively owns all intellectual property and other rights, title and interest in and to the GBP Service and the Website. For example and without limitation, GBP owns the copyrights in and to the Website, and certain technology used in providing the Canvas on Demand Service. You will not acquire any right, title or interest therein under this TOS or otherwise to any intellectual property owned by GBP.
(b) GBP grants you a limited revocable license to access and use the Website and the GBP Service for its intended purposes, subject to your compliance with this TOS. This license does not include the right to collect or use information contained on the Website for purposes prohibited by GBP; to compete with GBP; to create derivative works based on the content of the Website; or download or copy the Website (other than page caching). If you use the Website in a manner that exceeds the scope of this license or you breach this TOS, GBP may revoke the license granted to you.
3. General Rules.
3.1 Prohibited Use. You may only use the GBP Service as expressly permitted by GBP. You may not cause harm to the Website or the GBP Service. Specifically, but not by way of limitation, you may not: (i) interfere with the GBP Service by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (ii) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the GBP Service; (iii) use a robot, spider or other device or process to monitor the activity on or copy pages from the Website, except in the operation or use of an internet “search engine”, hit counters or similar technology; (iv) collect electronic mail addresses or other information from third parties by using the GBP Service; (v) impersonate another person or entity; (vi) use any meta tags, search terms, key terms, or the like that contain GBP’s name or trademarks; (vii) engage in any activity that interferes with another user’s ability to use or enjoy the GBP Service; or (viii) assist or encourage any third party in engaging in any activity prohibited by this TOS.
3.3 Ordering Policies. If you purchase Products, you agree to do so in accordance with instructions provided on the Website. Title to the Products you purchase passes to you when the Products are delivered to the common carrier.
4. Reservation of Rights.
4.1 Monitoring. GBP reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Website. If GBP determines, in its sole and absolute discretion, that you or another GBP user will breach a term or condition of this TOS or that such transaction or communication is inappropriate, GBP may cancel such transaction or take any other action to restrict access to or the availability of any material that may be considered objectionable, without any liability to you or any third party.
4.2 Modification of the Service. GBP reserves the right to modify the organization, structure or “look and feel” of the GBP Service or the Website, and may change, suspend, or discontinue any aspect of the GBP Service at any time without any liability to you or any third party. GBP shall have complete discretion over the features, functions, prices and other terms and conditions on which the GBP Service is offered to GBP users.
When you submit questions, comments, suggestions, ideas, message board postings, material submitted via web forms, contest entries, communications or any other information (“Submissions”), you grant GBP permission to use such Submissions for marketing and other promotional purposes, including the right to sublicense. You agree that GBP will have no obligation to keep any Submissions confidential. You will not bring a claim against GBP based on “moral rights” or the likes arising from GBP’s use of a Submission.
6. Representations and Warranties.
6.1 Mutual Representations and Warranties. You represent and warrant to GBP and GBP represents and warrants to you: (i) that you or it has the full power and authority to enter into and perform under this TOS, (ii) the execution and performance of your or its obligations under this TOS does not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (iii) this TOS is a legal, valid and binding obligation of the party entering into this TOS, enforceable in accordance with its terms and conditions.
6.2 By You. You represent and warrant to GBP that, in your use of the GBP Service, you will comply with all applicable laws, rules, and regulations.
7. Disclaimers and Exclusions.
DISCLAIMER OF WARRANTIES. GBP PROVIDES THE WEBSITE AND CANVAS ON DEMAND SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. CANVAS ON DEMAND DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, GBP SERVICE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. GBP MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
8. Limitation of Liability.
LIMITATION OF LIABILITY. GBP WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE GBP SERVICE OR THIS TOS, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A BREACH OF A PARTY’S REPRESENTATIONS AND WARRANTIES UNDER THIS TOS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THIS TOS, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS TOS EXCEED THE GREATER OF (i) THE AMOUNT PAID BY CANVAS ON DEMAND TO YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (ii) $100.
You must indemnify and hold GBP and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the “Parties”) harmless from any damage, loss, or expense (including without limitation, attorneys’ fees and costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought against any of the Parties alleging that you have breached any provision of this TOS through any act or omission. If you have to indemnify GBP under this Section, GBP will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without GBP’s express written permission.
10.1 Termination. In its sole discretion, with or without notice to you, GBP may: (i) suspend, limit your access to or terminate your use of the Website and/or the GBP Service, (ii) suspend, limit your access to or terminate your account, (iii) remove any of your content from GBP’s servers and directories and (iv) prohibit you from using the GBP Service and/or the Website.
10.2 Survival. Notwithstanding Section 10.1 above, this TOS will survive indefinitely unless and until GBP chooses to terminate this TOS.
10.3 Effect of Termination. If you or GBP terminates your use of the Website or the GBP Service, GBP may delete any content or other materials relating to your use of the GBP Service on GBP’s servers or otherwise in its possession and GBP will have no liability to you or any third party for doing so.
All notices required or permitted to be given under these TOS will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to GBP, you must use the following addresses: Great Big Photos 17202 Gothard St # 3, Hutington Beach, California, CA 92647, United States or firstname.lastname@example.org. If GBP provides notice to you, GBP will use the contact information provided by you to GBP. All notices will be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no “system error” or other notice of non-delivery is generated. If applicable law requires that a given communication be “in writing,” you agree that email communication will satisfy this requirement.
12. Dispute Resolution.
All disputes arising out of, relating to or connected with these TOS or your use of any part of the GBP Service will be exclusively resolved under confidential binding arbitration held in California, before and in accordance with the Rules of the American Arbitration Association, by a sole arbitrator applying California law (without regard for conflicts of law principles). The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction. Any action to enforce an arbitrator’s award will be brought in a federal or state court located in California. Each party hereby irrevocably submits to the personal jurisdiction of the Federal and California State courts in California. Notwithstanding anything to the contrary in this Section 12, GBP may seek equitable relief, including, without limitation, injunctive relief and specific performance, without the requirement of posting a bond or other security or proving money damages are insufficient, from a court of competent jurisdiction.
These TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of California without reference to conflict of law principles. This TOS is not assignable or transferable by you without the prior written consent of GBP. This TOS (including all of the policies and other Agreements described in this TOS, which are incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under this TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. You and GBP are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this TOS. The invalidity or unenforceability of any provision of this TOS will not affect the validity or enforceability of any other provision of this TOS, all of which will remain in full force and effect.