Bay Photo - User Agreement

Bay Photo User Agreement

Terms and Conditions
-Restricted Use of Site-

This User Agreement sets forth the terms and conditions on which Bay Photo, Inc. ("Bay Photo" "us" or "our") offers merchandise and services to users ("Users" "you" or "your") and affiliates at the domain and sub-domains of www.bayphoto.com (from time to time, the "Site"). If the User is not an individual, then "you" means your company, its officers, members, agents, successors and assigns. By entering and using the Site, you indicate that you accept these terms and conditions and that you agree to be bound by them. Acceptance of these terms and conditions creates a binding contract between you and Bay Photo and means that you will use the Site only in a manner consistent with these terms and conditions. Agreeing to abide by the terms and conditions of this User Agreement is an express condition precedent to Bay Photo's granting you a limited license to access and make personal use of the Site.

Bay Photo provides the Services (as further defined below) available at the Site to Users subject to this User Agreement, Bay Photo's Privacy Policy and other terms and conditions provided in this document or on the Site (collectively, the "Policies"). In addition, when using particular Services at the Site, guidelines or rules may be posted which are applicable to your use of those Services. Your use of the Site and your relationship with Bay Photo are subject to all Policies all of which are incorporated by reference into this User Agreement.

Please read this User Agreement carefully before accessing or using the Site. Accessing the Site signifies your agreement to be bound by all of the Policies contained in the most current version of this User Agreement. Using Bay Photo's ordering capabilities signifies your representation and warranty that you agree and consent to abide by all Policies, without exception. Bay Photo reserves all rights and remedies it may have at law and equity against persons using the Site who do not agree to be bound by the Policies.

IF YOU DO NOT AGREE TO BE BOUND BY ALL THE POLICIES OR CANNOT COMPLY WITH THE POLICIES, DO NOT ACCESS OR USE THE SITE.

Privacy Policy
When you create a Bay Photo account, you need to provide certain personal information, including your name, email address, and mailing address. We protect and use this information as set forth in our Privacy Policy, which Privacy Policy is subject to modification from time to time at our sole discretion.

Intellectual Property
Bay Photo provides online Services to Users, including but not limited to: the ability to upload, view, manipulate and store User digital images, access to libraries of digital images owned by Bay Photo, the virtual display of such digital images on an assortment of Bay Photo merchandise, the processing of e-commerce transactions for User purchases of Bay Photo merchandise, order fulfillment, and User credit card billing (hereinafter collectively, the "Services"). To continue to enjoy the commercial benefits of our merchandise and service-related innovations, Bay Photo licenses an assortment of intellectual property, including trademarks, trade dress, copyrights and other intellectual property ("IP"). Unless otherwise specified, the designs embodied in the merchandise depicted in this Site are licensed by Bay Photo. Any use of these designs without the express written consent of Bay Photo and its licensor is prohibited. Bay Photo and all the IP contained on this Site are protected under domestic and international IP laws. You acknowledge that Bay Photo provides access to its Site that contains content that is protected by IP rights. You will only use such content in a legal manner, in compliance with all applicable laws and regulations and this User Agreement.

The uploading, viewing, manipulation, storage or other use of third-party logos, trademarks and trade names on merchandise in this Site are for illustrative purposes to represent Bay Photo's expertise in imaging and branding capabilities. Such use does not imply an endorsement or association between Bay Photo and any third-party, nor does it indicate that the merchandise has been used or purchased by any third-party. Merchandise featuring these designs is not for sale to anyone other than authorized representatives of the owners of the logos, trademarks and trade names.

Copyrights and Trademarks
Unless otherwise specified, Bay Photo licenses the copyright in designs and images that are featured on this Site for application to Bay Photo merchandise, or other publication. Copyright in the web pages and in the screens displaying the web pages, in the content of those web screens and web pages, and in the selection, coordination and arrangement of that content, is licensed by Bay Photo. No part of the Site or contents thereof may be reproduced, stored, or re-distributed, in any form or by any means whatsoever without the express prior written consent of licensor. In the event of any permitted reproduction, redistribution or publication of copyrighted material, no changes in or deletion of attribution or copyright or trademark notices shall be made and Bay Photo and its licensor expressly reserve all rights in its IP materials.

Bay Photo does not authorize use of its trademarks without express prior written consent of Bay Photo. Bay Photo controls the use its trademarks by all licensees and authorized parties, and pursues unauthorized use of its trademarks by parties who do not have a valid license or authorization from Bay Photo. Bay Photo reserves all rights to object to the use of any Bay Photo trademark, even if User was previously granted permission to use such trademark.

Art, Logos, Trademarks, and Other Supplied Materials
Bay Photo uses digital images, art, logos, and other materials supplied by Users ("Artwork") in the course of providing Services and merchandise. Bay Photo assumes no responsibility for determining the proper ownership or proper use of Artwork. All liabilities of this nature rest with the Users. Users placing orders with Bay Photo represent and warrant that they have the authority to order, purchase and distribute the merchandise with the Artwork specified on the order, and that the use or display of the Artwork will not violate any laws, rules, regulations or rights of third parties.

Bay Photo assumes no responsibility for determining who does or does not have such authority. By submitting Artwork to Bay Photo for application on merchandise, Users agree to defend and hold harmless Bay Photo for the use of any Artwork and for breach of this warranty. Users shall also defend, indemnify and hold Bay Photo harmless from and against all claims, liabilities and expenses arising out of or related to any actual or alleged infringement or misappropriation of any copyright, trademark or other proprietary rights or merchandise. This warranty will remain in effect after delivery of the Services or merchandise, and after termination of this User Agreement.

Bay Photo's Right to Refuse Services
At its sole discretion and without liability to its Users, Bay Photo reserves the right to refuse to provide merchandise or Services when it is determined that the Artwork does not meet with Bay Photo's standards. Such standards include, but are not limited to, images Bay Photo deems to be:

i) Abusive, pornographic, deceptive, obscene, slanderous, defamatory, or otherwise inappropriate;

ii) Compromise copyrighted or trademark laws;

iii) Violates or otherwise encroaches upon the rights of any third party;

iv) Advocates illegal activities or is otherwise deemed harmful or offensive.

Your Account
Users are required to obtain an account from Bay Photo to order merchandise and Services from the Site. You are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer. You accept responsibility for all activities that occur under your account or password and such use shall be deemed to be use by you. You will ensure that all use of your account complies fully with the provisions of this User Agreement, without exception.

Risk of Loss for Merchandise Orders
All items purchased from Bay Photo are subject to a shipping contract. The risk of loss and title for such items pass to you upon Bay Photo's delivery to the shipping carrier.

Accuracy of Imaging and Merchandise Descriptions
Bay Photo attempts to be as clear as possible in depicting and describing all merchandise and imaging available through the Site. However, Bay Photo does not warrant to Users that imaging and merchandise descriptions or other content of the Site are entirely accurate, complete, reliable, current, or error-free. If imaging and/or merchandise offered on the Site are not as depicted or described, your sole remedy is to return it in unused condition.

Corrections
Bay Photo reserves the right at any time to correct any errors in pricing or merchandise descriptions and/or to cancel or refuse to accept any order based upon an incorrect price listing. Services and merchandise pricing and/or features are subject to change without notice or liability to Bay Photo. Bay Photo also reserves the right to limit order quantities.

Minors
Bay Photo does not intentionally sell merchandise or Services for purchase by children or collect information about children. Children under 18, but at least 13 years of age, are authorized to use the Site only with the involvement of a parent or legal guardian who agrees to be bound by this User Agreement. Children under the age of 13 are expressly prohibited from using the Site, and parents or legal guardians may not agree to this User Agreement on their behalf.

Changes to the Site
Bay Photo reserves the exclusive right, at our discretion, to update, change, modify, add, or remove portions of the Site, the Policies and this User Agreement from time to time including, but not limited to, content, hours of availability, and system requirements. The effective date of the latest version of the Policies and User Agreement, as stated below, indicates the last time the Policies and User Agreement were materially modified. Checking the effective date below allows you to determine whether there have been material modifications since the last time you reviewed the Policies and User Agreement.

The Policies were last materially modified on 08/08/06.

Arbitration
Expressly excluding controversies or claims relating to User non-payment of monies owed to Bay Photo, any other controversy between you and Bay Photo involving the construction and application of any of the terms, covenants or conditions of this User Agreement and/or the Policies shall be submitted to final, binding and non-appealable arbitration in Santa Cruz County at the request of Bay Photo, and the arbitration shall comply with and be governed by the provisions of the California Arbitration Act, Sections 1280-1294.2 of the California Code of Civil Procedure, as amended.

Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy otherwise is resolved. Either party also may, without waiving any remedy under this User Agreement, seek from any court having jurisdiction located in Santa Cruz County, California, any interim or provisional relief that is necessary to protect the rights or property of that party, pending the arbitrator's determination of the merits of the controversy.

Severability
If any portion of this User Agreement shall be deemed invalid, void, or for any reason unenforceable, that portion shall be deemed severable and shall not affect the validity and enforceability of any remaining portions of this User Agreement. If a court of competent jurisdiction finds any portion this User Agreement to be invalid or unenforceable, such portion shall be given the maximum effect permitted under applicable law, and the remainder of this User Agreement shall remain valid and fully enforceable according to its terms, and the invalid or unenforceable portion shall be replaced with a valid and enforceable provision that most closely reflects the intention of Bay Photo.

Warranty Disclaimer
The information, materials and Services provided at the Site are provided on an "as is" and "as available" basis without warranty of any kind, implied, express or statutory, including, but not limited to, warranties of title or non-infringement, implied warranties of merchantability or fitness for a particular purpose, and freedom from computer virus, other than those warranties that are implied by, and incapable of exclusion, restriction or modification under the laws applicable to this User Agreement. All use of the Services (including but not limited to the accessing and use of content, information and services, the purchase of merchandise, the transmission of information and other communications by Users, and the downloading of computer files) is at your sole risk. Bay Photo does not warrant the accuracy, adequacy or completeness of this information and materials and expressly disclaims liability for errors or omissions in this information and materials.

Limitation on Liability
In no event will Bay Photo be liable for any damages, including without limitation direct or indirect, special, incidental, or consequential damages, losses or expenses arising out of or in connection with the Site or use thereof or inability to use by any party, or in connection with any failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus or line or system failure, even if Bay Photo, or representatives thereof, are advised of the possibility of such damages, losses or expenses. Links to other internet resources are at your own risk; the content, accuracy, opinions expressed, and other links provided by these resources are not investigated, verified, monitored, or endorsed by Bay Photo.

Term and Termination
This User Agreement is effective from your acceptance of the Policies, which is indicated by first use of the Site. Bay Photo may terminate this User Agreement any time without notice. If you violate any of these terms and conditions herein, your permission to use the Site will terminate automatically.

Bay Photo reserves the right to discontinue accounts that have been inactive for more than 365 days.

Upon termination of this User Agreement, all rights granted to you under this User Agreement shall terminate immediately. Bay Photo's right to enforce the provisions of this User Agreement shall survive termination of this User Agreement.

Indemnification
You shall defend, indemnify and hold Bay Photo harmless from and against any and all claims and expenses, including reasonable attorneys' and expert fees, arising out of or related in any way to your use of the Site.

Notices
All notices required or permitted under this User Agreement shall be in writing and deemed given upon receipt when sent by registered or certified mail, return receipt requested, postage prepaid or commercial overnight carrier. All communications shall be sent to the address set forth below or to such other address as may be designated by Bay Photo by providing notice through disclosure in this User Agreement.

Bay Photo, Inc.
2608 Chanticleer Ave.
Santa Cruz, CA 95065

Notice of breach of this User Agreement or termination of any portion of this User Agreement will be provided by posting on the Site, regular mail, or electronic mail to the e-mail address provided by the User at the time of registration for the Services.

Waiver
No waiver of any default or breach of this User Agreement by Bay Photo shall be deemed a continuing waiver or a waiver of any other breach or default, no matter how similar. Bay Photo's failure to insist upon or enforce strict performance of any provision of this User Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between parties nor trade practice shall act to modify any provision of this User Agreement.

Governing Law and Jurisdiction
This Site is controlled and operated by Bay Photo and its licensor from its offices in Santa Cruz, California. Any claims arising from or relating to the use of this Site are governed by the laws of the State of California, United States of America. By accessing and using this Site, you consent to personal jurisdiction in the federal and state courts of Santa Cruz County, California, for any action arising out of or relating to the access and use of this Site--subject to the arbitration provision detailed above. If the action lies within State jurisdiction, then the exclusive venue shall be Santa Cruz County Superior Court; if the action lies within federal jurisdiction, then the exclusive venue shall be United States District Court for the Northern District of California.

Entire Agreement
This User Agreement constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements. Each of the parties acknowledge and agree that the other has not made any representations, warranties or agreements of any kind, except as may be expressly set forth herein.