“Website” shall mean and include all the materials, text, information, concepts, program materials, photographic images, narrative, music, design, videos or any other content generally viewable by Visitors on www.thebabywhispererportraits.com through which Members may access the Monthly Subscription Service.
“Company” refers to The Baby Whisperer Portraits LLC, a California limited liability company, owner of the Website.
“Us” or “we” or “our” refers to the Company.
“Visitor” is someone that merely visits or browses our Website.
“Member” has the meaning set forth in the Monthly Subscription Agreement
“User” is a collective identifier that refers to either a Visitor or a Member.
“You” or “Your(s)” refers to you as a Visitor, Member or User.
“Monthly Subscription Agreement” shall mean an agreement by and between a Member and the Company governing a Member’s access to Subscription Content in consideration of the payment of a Monthly Subscription Fee.
“Subscription Content” shall mean that Content and Member Content accessible through and identified as such on the Website that is available solely exclusively to Members as a part of the Monthly Subscription Service.
“Content” shall mean any all text, music, information, materials, concepts, program materials, photographic images, manuals, narratives, design, graphics, videos or any other content offered by the Company on or in Website or Service (including any Blog), but excluding Member Content
“Member Content” is, other than Content, any and all text, information, materials, concepts, programs, program materials, marketing, business plans, projections, forecasts, estimates, budgets, photography images, manuals, narratives, design, graphics, or any other content posted, uploaded, transmitted to or shared on the Monthly Subscription Service section of Website by a Member and available exclusively to Members.
“Blog” shall mean that portion of the Company’s Website containing the Company representative’s experiences, observations, narratives, videos, photographic images or graphics or containing links to other websites, exclusively available to Members for viewing or submission of Member Content.
“Third Party Link” or “Third Party Advertiser Link” shall have the meaning as further set forth herein.
AGREEMENT; SOLE AND ENTIRE UNDERSTANDING; REVISIONS AND AMENDMENTS
The Company may revise or amend this Agreement at any time without specific notice to you. The then latest Agreement will be posted on our Website, and Users should review this Agreement prior to using our Website or Service. After any revisions to this Agreement are posted, you agree to be bound to any changes to this Agreement. Therefore, it is important for you to visit this page periodically to review the Agreement. Please read this Agreement carefully and save it. If you do not accept this Agreement, do not access and use our Website or access our Service. If you have already accessed our Website and do not accept this Agreement, you should immediately discontinue use of our Website and Service.
WEBSITE LIMITED LICENSE GRANT
USER ELIGIBILITY; USER COMPLIANCE
CONTENT DISCLAIMER; ERRORS; REVISIONS
Notwithstanding the foregoing or anything to the contrary, Company reserves the right to change, alter, amend or otherwise revise the Website or the Service (including any Content contained therein) at any time, for any reason, with or without notice. User acknowledges that the Website and Service (including any Content contained therein) are not guaranteed to be complete, correct, error-free, bug-free, virus-free timely, current or up-to-date or otherwise reliable, and Company makes no warranty or guaranty that it will undertake any obligation to modify the Website or the Service (including any Content contained therein) to correct such conditions. Company reserves the right, exercisable at any time for any reason, with or without notice to Users: a) to alter or delete or revise the Website or Service (including any Content contained therein) in any way, including but not limited to changes in content, design, layout, form, functionality, or software or hardware necessary to access the Website and Services (including any Content contained therein) and; b) to shutdown the Website or the Service (including any Content contained therein) temporarily or permanently. In addition to the foregoing, Users may not be able to access the Website or Service (including but not limited to any Content contained therein) from time to time as a result of traffic congestion or acts beyond our reasonable control (e.g. fire, flood, loss of power, riots, terrorists attack, internet failure, equipment failure, failure or lack of telecommunications or network connections or computer systems, et. al. (collectively “Force Majeure Event”)). In the event of the occurrence of a Force Majeure Event, Company will have no liability for its inability or failure to make the Website or Service (including any Content contained therein) available but Company will use commercially feasible efforts to restore the affected Website or Service (including any Content contained therein) as soon as reasonably feasible.
MEMBER CONTENT SUBMISSIONS; COMPANY AT-RISK DISCLAIMER OF LIABILITY; MEMBER WARRANTIES AND REPRESENTATIONS; PROHIBITED CONDUCT; OWNERSHIP RIGHTS
Each Member hereby grants Company a royalty-free, non-exclusive, worldwide license to display its Member Content on the Website for viewing by other Members as part of the Company’s Monthly Subscription Service for the thirty (30) day period commencing on the first day upon which the Company first displays the Member Content. Company acknowledges that, subject to the foregoing license grant to the Company, Member shall retain any underlying ownership rights to the photographic images contained in any such Member Content.
Members warrant and represent that a) any and all text, information, materials, concepts, programs, program materials, photography images, manuals, narratives, design, graphics or any other content posted, uploaded or transmitted to the Website or Service: 1) is the sole and exclusive, original property of the Member, is owned in its entirety by the Member exclusively and does not violate any other Member or third party’s copyright, trademark, service mark, privacy right or otherwise infringe on any other party’s ownership or privacy rights..
Members agree to abide by any and all rules and regulations that Company may adopt from time to time respecting posting, uploading, transmitting or sharing of Member Content on the Website or Service viewable by Members. Member submitting Member Content agree to abide by the terms of the Monthly Subscription Agreement accessible on the Company’s Website and incorporated herein by reference to this Agreement.
Members submitting Member Content in the form of narrative or written material understand and agree to not submit any such Member Content that is a) offensive, vulgar, defamatory, libelous or slanderous, tortious, or constitute an invasion of privacy; or b) harassing, racist, threatening, homophobic, hateful or obscene; c) sexually graphic or profane; or d) harmful or dangerous, or e) violent or graphic.
Members acknowledge and understand that Company has no obligation to monitor Member Content posted on the Service section of the Website and disclaims any and all liability to any Member (including the Member submitting Content) or any other party, as a result of a Member’s uploading, posting or transmitting Member Content to the Website or Service and the Company’s embedding of the Member Content on the Website or Service.
Members may report to Company any photographic or video imagery submitted Member Content as being either in violation of subparagraphs a), b) or c) of the above paragraphs (individually or collectively a “Violation”). In the event that the Company determines in the exercise of its sole unfettered discretion that a Violation has occurred, the Company may: a) remove the objectionable Member Content from the Website; b) terminate the submitting Member’s authorization to submit further Member Content in photographic or video image form or any narrative or written form; c) terminate the submitting Member’s right to access the Monthly Subscription Service in its entirety; or d) all of the above.
Members acknowledge, represent and warrant that each will refrain from infringing on the Company’s or any third party’s intellectual property rights. Upon notification of potential infringement by any Member, we will investigate a claim of potential infringement and may, upon completion of that investigation, a) remove the objectionable Member Content from the Website; b) terminate the submitting Member’s authorization to submit further Member Content in photographic or video image form or any narrative or written form; c) terminate the submitting Member’s right to access the Monthly Subscription Service in its entirety; or d) all of the above.
As a Member, you agree not to use our Website or Service (including any Content contained therein), to: a) upload, post or otherwise transmit any Member Content that: 1) violates any local, state, federal or international laws, rules or regulations; 2) infringes upon any trademark, service mark, patent, copyright, trade secret or any other property right or breaches any confidentiality or non-disclosure agreement; 3) contains any private personally identifiable information about any party; 4) contains software viruses or other code files capable of limiting or impairing our ability to deliver the Website or the Service (including any Content contained therein); 5) contains photographic or video images, text , narrative, design or any other content to which a Member does not have full ownership rights or an enforceable non-exclusive, royalty-free, worldwide, license, sublicense, distribution or sub-distribution right to transmit or display such image content in a public, commercial setting in any medium without geographic or other limitation in perpetuity; 6) contains any advertising, promotional, misleading metadata, spam, robots, spiders, offline readers, junk mail, scams or solicitation content; 7) contain links to other websites or; 8) contains video or music.
Notwithstanding anything contained herein to the contrary, the Company reserves the right, exercisable at any time in its absolute discretion for any reason not specifically referenced above, to decline to include any submitted Member Content for access and view by Members.
DISCLAIMER OF WARRANTIES
ANY USER’S USAGE OF THE WEBSITE OR SERVICE PROVIDED ON OR THROUGH THE WEBSITE (INCLUDING ANY CONTENT CONTAINED THEREIN) IS AT USER’S OWN RISK. THE WEBSITE AND SERVICES (INCLUDING ANY CONTENT CONTAINED THEREIN) ARE PROVIDED ON AN “AS IS”, “WHERE IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. USERS ACKNOWLEDGES AND AGREES THAT THE COMPANY HAS MADE, AND HEREBY DOES NOT MAKE ANY STATEMENTS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. COMPANY (INCLUDING ITS AGENTS, EMPLOYEES, DIRECTORS, AND OFFICERS) HAS NOT MADE AND DOES NOT MAKE ANY STATEMENT, WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE WEBSITE AND SERVICE PROVIDED THROUGH THE WEBSITE (INCLUDING ANY CONTENT CONTAINED THEREIN). WITHOUT LIMITING THE FOREGOING, COMPANY (INCLUDING ITS AGENTS, EMPLOYEES, DIRECTORS AND OFFICERS) DOES NOT PROMISE THAT THE WEBSITE OR SERVICE PROVIDED THROUGH THE WEBSITE (INCLUDING ANY CONTENT CONTAINED THEREIN) WILL BE ACCURATE, RELIABLE, PROMISE ANY SPECIFIC RESULTS, BE ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE OR SERVICES OBTAINED THROUGH THE WEBSITE (INCLUDING ANY CONTENT CONTAINED THEREIN) OR THE SERVER OR NETWORK CONNECTIONS OR SOFTWARE THAT MAKE THE WEBSITE OR SERVICES (INCLUDING ANY CONTENT CONTAINED THEREIN) AVAILABLE ARE SECURE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR SERVICE (INCLUDING ANY CONTENT CONTAINED THEREIN) WILL OTHERWISE MEET USER’S NEEDS OR EXPECTATIONS. COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. NO VERBAL OR WRITTEN REPRESENTATIONS, INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS AUTHORIZED REPRESENTATIVE AT ANY TIME SHALL LIMIT THIS DISCLAIMER OF WARRANTIES OR OTHERWISE CREATE A WARRANTY OR INCREASE THE SCOPE OF THIS WARRANTY. COMPANY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR MEMBER CONTENT POSTED, UPLOADED OR OTHERWISE TRANSMITTED TO THE PAY SUBSCRIPTION SERVICES SECTION OF THE WEBSITE. NOTHING CONTAINED HEREIN SHALL AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
LIMITATION OF LIABILITY
IN NO EVENT WILL COMPANY (OR ITS LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS) BE LIABLE TO ANY USER OR THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY OTHER THEORY LOSS, ARISING FROM ANY USER’S USAGE OF THE WEBSITE OR SERVICE (INCLUDING ANY CONTENT CONTAINED THEREIN) OR ANY SOFTWARE OR HARDWARE USED TO MAKE THE WEBSITE OR SERVICES (INCLUDING ANY CONTENT CONTAINED THEREIN) AVAILABLE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, USER’S EXCLUSIVE REMEDY AND COMPANY’S TOTAL LIABILITY TO YOU, IF ANY, FOR ANY CLAIM WHATSOEVER, REGARDLESS OF THE CLAIM THEORY (WHETHER BASED ON CONTRACT, TORT, WARRANTY, INDEMNIFICATION OR OTHERWISE) OR THE EXISTENCE OF MULTIPLE CLAIMS, WILL AT ALL TIMES BE LIMITED TO AN AMOUNT EQUAL TO THE AMOUNT PAID, IF ANY, BY USER TO THE COMPANY FOR ONE MONTH’S ACCESS TO THE WEBSITE OR SERVICE (INCLUDING ANY CONTENT CONTAINED THEREIN).
THIRD PARTY LINKS, THIRD PARTY ADVERTISING LINKS, AND SERVICES OR PRODUCTS OFFERED
The Company’s Website and Service (and any Content contained therein) may contain links to other websites which are not operated by the Company and which may or may not offer goods or services for sale or lease (“Third Party Links”). In addition, the Company from time to time may include links to third party advertising, sponsorship or promotional materials on the Website or Service (including any Content contained therein) (“Third Party Advertising Link Content” or “ Third Party Advertiser Link”). Third Party Links or Advertisers are responsible for ensuring that material submitted for inclusion on our Website and Service (including any Content contained therein) is accurate and complies with applicable laws. The Company does not monitor the accuracy of the material provided or the products or services provided by Third Party Links or Advertisers
COMPANY DOES NOT ENDORSE, GUARANTEE, WARRANTY, OR RECOMMEND ANY PRODUCTS OR SERVICES OR PROMOTIONS OFFERED BY SUCH THIRD PARTY LINKS OR THIRD PARTY ADVERTISER LINKS AND WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT ANY PRODUCT, PROMOTION OR SERVICE CONTAINED IN THIRD PARTY LINKS OR THIRD PARTY LINK ADVERTISING CONTENT CONTAINED ON THE WEBSITE OR SERVICE (INCLUDING ANY CONTENT CONTAINED THEREIN). Users acknowledge that the foregoing disclaimer applies without limitation to any and all written or oral references or mere mentions of goods, products, services, promotions or other information even if, solely or in combination, by use of such third party’s trade name, trademark, manufacturer, supplier, advertiser or otherwise.
Users acknowledge that, in leaving the Website or Service (including any Content contained therein) to use such Third Party Links or Third Party Advertising Links or purchasing a product from a Third Party Link or Third Party Advertising Link, it does so at its own risk. Such Third Party Links and Third Party Link Advertisers each operate its own processing, fulfillment, billing and customer service, and a User’s purchases of goods or services is governed solely by terms and conditions of sale established by such Third Party Link or Third Party Advertising Link (including any and all warranties, (whether express or implied), disclaimer of warranties, limitation of liability) and any privacy policies.
User agrees to hold harmless, defend and indemnify the Company (including its agents, officers, directors, employees, and successors and assigns) from and against any and all loss damage and expense (including for reasonable attorneys fees) from any third party claim, demand or action arising out of User’s breach of any of its obligations, warranties or representations under this Agreement
Any such controversy or claim not excluded under the immediately preceding subparagraphs a), b) or c) shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party.
Any arbitration proceeding shall be conducted in the City or County of Phoenix, Arizona, and any arbitration award may be enforceable in any court having jurisdiction thereof. Either party may seek an interim or preliminary protective order from a court of competent jurisdiction in the City or County of Phoenix, Arizona pending the completion of arbitration. Each party shall split the arbitration fees and costs on a 50-50 basis, provided, however, that each party will bear its own attorney fees.