This Service Agreement that you are entering into with Shaun Downey Photography, LLC (“Shaun Downey Photography”) is a legal document that details your rights and obligations. By visiting this website you agree to be bound by the terms and conditions of this Service Agreement. If you do not agree please do not use or access our website. The Shaun Downey Photography website and related services are offered to you conditioned upon your acceptance without modification of these Terms of Service. From time to time, it may be necessary for Shaun Downey Photography to update or revise certain provisions of the Terms of this Service Agreement. By using this Web Site or joining Shaun Downey Photography and accepting the Service Agreement, you agree that Shaun Downey Photography may change the terms of this Service Agreement in its sole discretion without specific notice to you. If you don’t agree to the changes proposed by Shaun Downey Photography, or to any terms in this Service Agreement, your only remedy is to cancel your use of the services offered under this agreement
1. Description of Service
Shaun Downey Photography operates this Web site and associated web pages, which, for purposes of these Terms of this Service Agreement, will be referred to as the “Shaun Downey Photography Web Site(s)”. Shaun Downey Photography offers you access to the Shaun Downey Photography Web Sites, which provides you access to a collection of resources, including, but not limited to, services to allow you to view and related goods and services, photography, prints, and downloadable services (the “Service”). Shaun Downey Photography offers you access to the Shaun Downey Photography Web Site in exchange for your payment of the fees, as applicable, and your agreement to accept and comply with the terms, conditions, policies and notices stated here and as may be modified by Shaun Downey Photography from time-to-time in its sole discretion without notice to you. Notwithstanding the foregoing, Shaun Downey Photography reserves the right to reject any registration for any reason. Unless explicitly stated otherwise, any new features or products that change, augment or enhance the current Service shall be subject to this Service Agreement.
The Services are designed and provided to you only for use to view only and purchase the said Services. As such, you understand and agree that (i) all rights are reserved by Shaun Downey Photography and the images and information remain the property of Shaun Downey Photography. (ii) no screenshots or resale of any images are permitted without the written consent of Shaun Downey Photography. You further understand and agree that the Services and the features and functionality of individual modules for the Services, are subject to change by Shaun Downey Photography.
No Refund Policy
Due to the nature of digital photography and the fact that photographs, once sent, cannot be returned; Shaun Downey Photography has a strict NO REFUNDS POLICY. Once a transaction has been completed (i.e., the buyer selected and paid for the photo and then Shaun Downey Photography sent the buyer the correct photograph) it is then considered non-refundable. If a buyer has selected and purchase an incorrect photo, he/she must notify Shaun Downey Photography, before receiving the “incorrect” photograph.
Refunds will NOT be given due to “not liking a photo”, selecting an incorrect photo after the buyer has already received the photograph, or any other reason. If a mistaken photo is sent to the buyer, as documented on the invoice, Shaun Downey Photography will send the correct photo to the buyer free of charge.
2. General Use of the Shaun Downey Photography Web Site
You promise that you will not use the Shaun Downey Photography Web Site or the Service in whole or in part, for any purpose that is unlawful or prohibited by this Service Agreement. You agree that you will not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, frame in another web page, use on any other Web site, transfer, or sell any information, software, lists of users, databases or other lists, products or services provided through or obtained from the Shaun Downey Photography Web Site. This means, among other activities, that you agree not to engage in the practices of screen scraping, database scraping, or any other activity with the purpose of obtaining lists of users or other information. You agree that you will not use the Service in any manner that could damage, disable, overburden, or impair the Shaun Downey Photography Web Site or interfere with any other party’s use and enjoyment of the Shaun Downey Photography Web Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Shaun Downey Photography Web Site. Except with the written permission of Shaun Downey Photography, you agree that you will not access or attempt to access password protected, secure or non-public areas of the Shaun Downey Photography Web Site. Unauthorized individuals attempting to access prohibited areas of the Shaun Downey Photography Web Site may be subject to prosecution..
3. Charges and Billing
You hereby authorize Shaun Downey Photography to charge your credit card in advance for all fees incurred by you in connection with your Shaun Downey Photography account and the service you have chosen. In most cases, we will be charging your designated credit card or checking account. All fees shall be paid in U.S. dollars.
Shaun Downey Photography reserves the right to change our fees or billing methods at any time, provided, however, that such modifications shall not take effect earlier than thirty (30) days after Shaun Downey Photography posts such modification on the Shaun Downey Photography Web Site. Shaun Downey Photography also has the right to collect applicable taxes and impose premium surcharges for some areas of the service and these surcharges may apply immediately after you purchase the Service. You are responsible and liable for any fees, including attorney and collection fees, that Shaun Downey Photography may incur in its efforts to collect any remaining balances from you. You should let Shaun Downey Photography know about any billing problems or discrepancies within thirty (30) days after they first appear on your account statement. If you do not bring them to Shaun Downey Photography’s attention within thirty (30) days, you agree that you waive your right to dispute such problems or discrepancies.
5. Third Party Content
The Shaun Downey Photography Web Site contains content and information from third party providers and/or links to their Web sites (“Third Party Content”). Such content is not under the control of Shaun Downey Photography and Shaun Downey Photography is not responsible for such content, including, without limitation, any link contained in such content, or any changes or updates to such content. Shaun Downey Photography is providing such Third Party Content to you only as a convenience, and the inclusion of such content does not imply endorsement by Shaun Downey Photography of such content or the affiliate. You may be subject to additional and/or different terms, conditions, and privacy policies when you use third party services, content, software, or sites. Shaun Downey Photography does reserve the right to remove content that, in Shaun Downey Photography’s judgment, does not meet its standards, but Shaun Downey Photography is not responsible for any failure or delay in removing such material.
Shaun Downey Photography is not and will not be responsible for (i) the terms and conditions of any transaction between you and any third party, (ii) any insufficiency of or problems with any such third party’s background, insurance, credit or licensing, or (iii) the quality of services performed by any such third party or any other legal liability arising out of or related to the performance of such services. In the event that you have a dispute with any such third party, you release Shaun Downey Photography (and its affiliates, suppliers, agents and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
6. DISCLAIMER OF WARRANTIES YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL SHAUN DOWNEY PHOTOGRAPHY’S TOTAL LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY YOU UNDER THIS AGREEMENT TO A MAXIMUM OF ONE THOUSAND DOLLARS ($1,000.00) REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE
7. Shaun Downey Photography Software Licenses
Shaun Downey Photography provides you with a non-exclusive, non-transferable, limited license to use Shaun Downey Photography’s Services, which you agree to use in accordance with this Service Agreement. You may not sub-license, or charge others to use or access, our software or Services without first obtaining written permission from us. All software and Services are owned by Shaun Downey Photography and/or its suppliers and is protected to the maximum extent permitted by copyright laws and international treaty provisions. Any reproduction, modification or redistribution of the software or Service is expressly prohibited and may result in severe civil and criminal penalties. Shaun Downey Photography’s software and Service, its structure, images, sequence and organization and source code are considered trade secrets of Shaun Downey Photography and its suppliers and are protected by trade secret laws. WITHOUT LIMITED THE FOREGOING, COPYING OR REPRODUCING THE SOFTWARE OR SERVICES TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPORDUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. YOU MAY NOT DECOMPILE OR DISASSEMBLE, REVERSE ENGINEER OR OTHERWISE ATTEMPT TO DISCOVER ANY SOURCE CODE CONTAINED IN ANY SOFTWARE PROVIDED HEREUNDER.
You agree to indemnify, defend, and hold harmless Shaun Downey Photography, its employees, members, directors, managers, officers or agents from and against any loss, liability, damage, penalty or expense (including attorneys’ fees, expert witness fees and cost of defense) they may suffer or incur as a result of (i) any failure by you or any employee, agent or you of you to comply with the terms of this Agreement; (ii) any warranty or representation made by you being false or misleading; (iii) any representation or warranty made by you or any employee or agent of You to any third person other than as specifically authorized by this Agreement, (iv) negligence of you or your subcontractors, agents or employees, or (v) any alleged or actual violations by you or your subcontractors, employees or agents of any governmental laws, regulations or rules.
9. Copyright and Trademark Notices
All materials on the Shaun Downey Photography Web Site (as well as the organization and layout of the Shaun Downey Photography Web Site) are owned and copyrighted or licensed by Shaun Downey Photography, its affiliates or its suppliers. All rights reserved. No reproduction, distribution, or transmission of the copyrighted materials at the Shaun Downey Photography Web Site is permitted without the written permission of Shaun Downey Photography. Any rights not expressly granted herein are reserved. Without Shaun Downey Photography’s prior permission, you agree not to display or use in any manner, any of Shaun Downey Photography trademarks, whether registered or not.
10. Intellectual Property
“Intellectual Property” means all of the following owned by a party: (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; (vi) images; and (vii) domain names. The rights owned by a party in its Intellectual Property shall be defined, collectively, as “Intellectual Property Rights.” Other than the express licenses granted by this Agreement, Shaun Downey Photography grants no right or license to you by implication, estoppel or otherwise to any Intellectual Property Rights of Shaun Downey Photography. Each party shall retain all ownership rights, title, and interest in and to its own products and services and all intellectual property rights therein, subject only to the rights and licenses specifically granted herein. Shaun Downey Photography (and not you) shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for any Intellectual Property Rights incorporated therein. You will cooperate with Shaun Downey Photography in pursuing such protection, including without limitation executing and delivering to Shaun Downey Photography such instruments as may be required to register or perfect Shaun Downey Photography’s interests in any Intellectual Property Rights and any assignments thereof. You shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from Shaun Downey Photography in connection with this Agreement.
Shaun Downey Photography reserves the right at anytime and from time to time to modify, discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Shaun Downey Photography shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
12. Termination and Cancellation
13. General Terms
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions. No provision of this Agreement shall be construed against any party merely because that party or counsel drafted or revised the provision in question. All parties have been advised and have had an opportunity to consult with legal counsel of their choosing regarding the force and effect of the terms set forth herein. This Agreement shall be deemed to be jointly prepared by the parties and therefore any ambiguity or uncertainty shall be interpreted accordingly. No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach. You may not assign this Agreement without the written consent of Shaun Downey Photography. Shaun Downey Photography may assign this Agreement in its sole discretion without the written consent of you. The section headings contained in this Agreement are for convenient reference only, and shall not in any way affect the meaning or interpretation of this Agreement. This Agreement, including all schedules, exhibits and attachments thereto, sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado (irrespective of its choice of law principles). The parties hereby agree that any suit to enforce any provision of this Agreement or arising out of or based upon this Agreement or the business relationship between the parties hereto shall be brought in federal or state court in Colorado. Each party hereby agrees that such courts shall have exclusive personal jurisdiction and venue with respect to such party, and each party hereby submits to the exclusive personal jurisdiction and venue of such courts. Each party hereby agrees that such courts shall have exclusive personal jurisdiction and venue with respect to such party, and each party hereby submits to the exclusive personal jurisdiction and venue of such courts. Should suit be brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including expert witness fees and fees on any appeal.