EFFECTIVE DATE: August 24, 2018
This ImageSeller Terms and Conditions of Use (the “Agreement”) is an agreement between you (a “User,” “you,” or “your”) and ImageSeller, LLC (“ImageSeller,” “we,” “our,” or “us”). This Agreement explains our obligations to you, and your obligations to us. We provide Users with access to certain Materials (as defined below), directly and through the website and associated domains of http://www.imageseller.com (the “Site”), to help our clients and their employees and representatives find information about the products and services (collectively, the “Products and Services”) offered by ImageSeller, to help our clients contact us for consultations regarding the Products and Services offered by ImageSeller, to help Users who are seeking employment with ImageSeller to provide us with their contact information and resumes, and to allow Users to post information on any blogs, forums, wikis or any other social media applications or services that we may provide. ImageSeller maintains the Site.
Materials on the Site. As used herein, “Materials” includes, but is not limited to, software, all informational text, software documentation, the Site design and “look and feel,” layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, and other materials, whether publicly posted or privately transmitted, as well as all derivative works thereof. Unless otherwise indicated, all Materials and Products and Services available on the Site, and all Materials and Products and Services provided by or through ImageSeller, its affiliates, subsidiaries, employees, agents, licensors or other commercial partners, are owned by us or other parties that have licensed their material or provided services to us, and are protected by U.S. or foreign copyright, trademark, trade secret and other intellectual property laws. All ImageSeller trademarks and service marks, logos, slogans and taglines, including without limitation, “ImageSeller,” “ImageSeller.com,” , are the registered and/or unregistered service marks or trademarks of ImageSeller or its licensors. All other trademarks, service marks, logos, slogans and taglines that may appear on the Site are the property of their respective owners. The use of these or any other service marks or trademarks on the Site is prohibited without express written permission from us or the owner of any such service mark or trademark.
No intellectual property or other rights in or to the Site or its contents are transferred to you. Notwithstanding the foregoing, and subject to the terms of this Agreement, ImageSeller hereby grants to you a limited, revocable, non-transferable and non-exclusive license to use the Materials to the extent, and only to the extent, necessary to access and use the Site and the Products and Services for the purposes for which they are intended, in accordance with the terms of this Agreement and of any other written agreement or agreements entered into between you and ImageSeller. This license does not permit you to, and you agree not to: store, copy, reproduce, republish, modify, upload, post, translate, scrape, rent, lease, loan, sell, distribute, transfer, transmit, display, decompile, reverse engineer, reverse assemble, decipher or otherwise attempt to discover any programming code or any source code used in or with the Materials or otherwise distribute in any way the Materials other than as specifically permitted in this Agreement or in any other written agreement or agreements entered into between you and ImageSeller. You may not sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer any right in the Materials, create derivative works based on or in any manner commercially exploit the Materials, in whole or in part, other than as expressly permitted in this Agreement or in any other written agreement or agreements entered into between you and ImageSeller. Any use of the Materials for any purpose other than as specifically permitted herein, or without our prior written consent or the prior written consent of our licensors, as applicable, is expressly prohibited. We reserve all rights not expressly granted in this Agreement.
Notwithstanding the foregoing, you are permitted to download a copy of any of the Materials on this Site on a single computer for personal, noncommercial use, provided no copyright, trademark or other proprietary notices are removed.
The information provided on the Site is provided solely for illustrative and/or informational purposes and does not create any business, contractual, or employment relationship.
Providing ImageSeller with Access to Other Accounts and Services. Some of our Products and Services may require you to give us access to or require you to provide login information and password information for accounts or services you may have with third-party providers. When you provide this information to us or give us access to these third-party accounts you agree that you have read all contracts and written agreements governing such access, login information and passwords and that you have all the necessary contractual and legal rights to give us such access, login information and passwords.
Comments and Feedback. Any questions, comments, suggestions, ideas, feedback, or other information provided by you to us (“Comments”) are not confidential and you hereby grant us a worldwide, perpetual, irrevocable, royalty-free license to reproduce, display, perform, distribute, publish, modify, edit or otherwise use such Comments as we deem appropriate, for any and all commercial and/or non-commercial purposes, in our sole discretion.
Monitoring of Content. ImageSeller may, but has no obligation to, monitor Content on the Site. We may disclose any information necessary or appropriate to satisfy our legal obligations, protect ImageSeller or its customers, or operate the Site properly and maintain proper access to the Products and Services. ImageSeller, in its sole discretion, may refuse to post, may remove, or may require you to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement. ImageSeller may, in its discretion, also require you to place all or any portion of the Content behind password protection. If ImageSeller has requested that Content be placed or has placed Content behind password protection, you may not publish the password or similar information in any way that limits the effectiveness of the password. If ImageSeller requests that you place any Content behind password protection and you fail to do so promptly, ImageSeller may place such Content behind password protection itself.
Third-Party Linking. Unless expressly permitted by us, you may not create a link to the Site. Our Site may contain links to other websites, including various social media websites. We do not regularly review materials on websites linked to from this Site, and we do not necessarily approve of or endorse the materials, or any associated product or service provided by a third party, appearing on any websites linked to from this Site. We assume no responsibility for the content or the policies and practices of such other websites. We encourage you to be aware when you leave our Site and to read the privacy policies of any other website that you visit. You agree that we shall not be responsible for any loss or damage of any sort incurred as a result of your use of any third-party websites and/or third-party services, whether or not you were linked to or directed to a third-party website or third-party service through the Site.
Rules. You agree to all of the following:
iii. reasonably likely to cause harm, or that could be reasonably considered as slanderous or libelous; or
ImageSeller may determine in its sole discretion whether or not a User is in violation of any of these policies. Violation of any of these policies may result in tracking of User information, and such information may be stored in order to identify the offending User. Offending Users may be permanently restricted from accessing or using the Site, including the Materials and the Products and Services and such Users’ Content. You agree that ImageSeller, in its sole discretion, may terminate your access to or use of the Site, at any time and for any reason, including without limitation if ImageSeller believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. You agree that any termination of your access to or use of the Site may be effected without prior notice and that in such case ImageSeller may immediately deactivate or delete any or all information and files associated with your use of the Site, and may bar any further access by you to such information or files. You agree that ImageSeller shall not be liable to you or any third party for any termination of your access to the Site or to any such information or files and shall not be required to make such information or files available to you after any such termination.
EMAIL AND OTHER COMMUNICATIONS
NO WARRANTY; LIMITATION OF LIABILITY
THE CONTENT ON THE SITE IS PROVIDED ‘AS IS’ AND ‘AS AVAILABLE’ AND IS WITHOUT WARRANTY OF ANY KIND. NEITHER IMAGESELLER NOR ITS LICENSORS WARRANT THAT ACCESS TO THE SITE AND/OR THE MATERIALS AVAILABLE ON OR THROUGH THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; NOR DOES IMAGESELLER OR ITS LICENSORS MAKE ANY REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, CURRENCY, QUALITY, COMPLETENESS, USEFULNESS, PERFORMANCE, SECURITY, LEGALITY OR SUITABILITY OF THE MATERIALS OR THE SITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND YOUR RELIANCE UPON THE MATERIALS IS AT YOUR SOLE RISK. IMAGESELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SITE AND THE MATERIALS ON THE SITE.
IMAGESELLER AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTIES THAT THE MATERIALS OR THE SITE ARE APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF YOU USE THE SITE OR THE MATERIALS OUTSIDE THE UNITED STATES OF AMERICA, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION EXPORT AND IMPORT REGULATIONS OF OTHER COUNTRIES. NEITHER IMAGESELLER NOR ANY THIRD-PARTY PROVIDERS, PARTNERS OR AFFILIATES OF IMAGESELLER WARRANT THAT THE SITE, ITS SERVERS, THE MATERIALS, OR ANY EMAIL OR OTHER ELECTRONIC COMMUNICATION SENT FROM THE SITE OR FROM ANY SUCH THIRD-PARTY PROVIDERS, PARTNERS OR AFFILIATES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
IN ADDITION, IMAGESELLER IS NOT RESPONSIBLE FOR, AND MAKES NO REPRESENTATIONS OR WARRANTIES FOR, THE DELIVERY OF ANY MESSAGES (SUCH AS EMAILS, POSTING OF ANSWERS OR TRANSMISSION OF ANY OTHER USER-GENERATED CONTENT) SENT THROUGH THE SITE TO ANYONE.
FURTHER, YOU ACKNOWLEDGE AND AGREE THAT ANY DATA, INFORMATION, CONTENT OR MATERIALS CONTAINED IN OR MADE AVAILABLE IN CONNECTION WITH THE SITE AND THE MATERIALS ARE NOT INTENDED AS A SUBSTITUTE FOR THE KNOWLEDGE, EXPERTISE, SKILL AND JUDGMENT OF LEGAL OR OTHER PROFESSIONALS. THE SITE AND THE MATERIALS DO NOT PROVIDE LEGAL OR OTHER PROFESSIONAL ADVICE. YOU ARE RESPONSIBLE FOR OBTAINING SUCH ADVICE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, IN NO EVENT SHALL IMAGESELLER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION FOR LOST PROFITS, LOST INCOME, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, OR LOST, DAMAGED OR INADVERTENTLY DISCLOSED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE), EVEN IF IMAGESELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH THE SITE OR THE CONTENTS OF THE SITE, INCLUDING WITHOUT LIMITATION THE MATERIALS, YOUR CONTENT, OR ANY THIRD-PARTY USER-GENERATED CONTENT. THE FOREGOING LIMITATION SHALL APPLY WITHOUT REGARD TO WHETHER ANY PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED, HAVE PROVEN INEFFECTIVE, OR HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THE CUMULATIVE, AGGREGATE LIABILITY OF IMAGESELLER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SITE OR THE MATERIALS AVAILABLE ON OR THROUGH THE SITE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE GREATER OF (1) THE TOTAL AMOUNT OF FEES PAID BY YOU TO IMAGESELLER, IN CONNECTION WITH YOUR USE OF THE SITE OR THE MATERIALS, DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE SUCH LIABILITY AROSE; OR (2) U.S.$100.00. NOTWITHSTANDING THE FOREGOING, (1) THE LIMITATION OF LIABILITY DESCRIBED IN THE PREVIOUS SENTENCE SHALL NOT APPLY TO DAMAGES CAUSED BY IMAGESELLER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (2) SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF LIABILITY, SO THE LIMITATION OF LIABILITY DESCRIBED IN THE PREVIOUS SENTENCE MAY NOT APPLY TO YOU.
IN THE EVENT OF ANY PROBLEM WITH THE SITE, THE MATERIALS OR YOUR CONTENT, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE SITE AND THE MATERIALS.
THIS SECTION SHALL SURVIVE THE TERMINATION OF YOUR RELATIONSHIP WITH IMAGESELLER.
You acknowledge that a violation or attempted violation of any of the terms of this Agreement by you or your affiliates, partners, or agents will cause such damage to ImageSeller as will be irreparable, the exact amount of which would be impossible to ascertain and for which there will be no adequate remedy at law. Accordingly, you agree that ImageSeller shall, in addition to any other remedies available at law or in equity, be entitled to specific performance or temporary, preliminary and permanent injunctive relief to enforce the terms and conditions of this Agreement without the necessity of proving inadequacy of legal remedies or irreparable harm, or posting bond, any such requirements to equitable and injunctive relief being hereby specifically waived. You agree that ImageSeller shall be entitled as a matter of right to recover from you any and all costs and expenses sustained or incurred by ImageSeller in obtaining any such equitable and injunctive relief, including, without limitation, reasonable attorneys’ fees. This section shall survive the termination of your relationship with ImageSeller.
Consumer Protection Notice
Please note that if you are a consumer, the limitations in this Agreement are intended to be only as broad and inclusive as is permitted by the laws of your state of residence.
If you are a New Jersey consumer, the terms of the sections titled “No Warranty; Limitation of Liability,” and “Indemnification,” do not limit or waive your rights under New Jersey law and the limitations in this Agreement are intended to be only as broad and inclusive as is permitted by the laws of the state of New Jersey.
Subject to the foregoing, we reserve all rights, defenses and permissible limitations under the laws of the state of New Jersey and under the laws of your state of residence.
We follow generally accepted industry standards to protect the information we collect through the Site. However, no data security measures are 100% secure. Therefore, while we implement reasonable physical, technical, and administrative measures to protect the information we collect, we cannot guarantee its absolute security.
All claims and disputes (excluding claims for defamation, violation of the federal Computer Fraud and Abuse Act, infringement or misappropriation of the other party’s patents, copyrights, trademarks, trade secrets or other intellectual property, and claims for injunctive or other equitable relief as set forth in the section titled “Equitable Relief”) arising in connection with this Agreement that cannot be resolved informally shall first be attempted to be resolved by binding arbitration on an individual basis under the terms of this Agreement. Unless otherwise agreed, all arbitration proceedings shall be held in English. Before either party may seek arbitration, the party must first send to the other party a written notice of dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to ImageSeller should be sent to:
414 14th Street
Denver CO 80202
After the Notice is received, you and ImageSeller may attempt to resolve the claim or dispute informally. If you and ImageSeller do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled. Arbitration shall be initiated through the American Arbitration Association (“AAA”). The AAA Consumer Arbitration Rules (“AAA Rules”) shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Agreement. In deciding any arbitration under this section, the arbitrator shall apply the substantive law of the state of Colorado (exclusive of its laws governing conflicts of law); provided that, matters relating to the enforceability of this section and to any award granted under this section shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. The arbitration shall be conducted by a single, neutral arbitrator. If you reside outside of the United States, the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties. To the extent that the arbitrator deems reasonable, the arbitrator shall conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances. Any in-person appearances requested by the arbitrator and agreed to by the parties shall be held in the United States. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and ImageSeller, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to any party under applicable law, the AAA Rules, and the terms of this Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator shall have the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator shall be final and binding upon you and ImageSeller. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain such confidentiality unless otherwise required by law. The confidentiality provisions in this section shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
IN THE EVENT ANY LITIGATION SHOULD ARISE BETWEEN YOU AND IMAGESELLER IN ANY STATE OR FEDERAL COURT IN A SUIT TO VACATE OR ENFORCE AN ARBITRATION AWARD OR OTHERWISE: (1) NO SUIT OR ACTION, ARISING OUT OF OR IN CONNECTION WITH THE SITE OR THE CONTENTS OF THE SITE, SHALL BE BROUGHT AGAINST IMAGESELLER OR ITS AGENTS, EMPLOYEES, SUBSIDIARIES, AFFILIATES OR PARENTS (BOTH DIRECT AND INDIRECT) MORE THAN ONE YEAR, OR THE SHORTEST DURATION PERMITTED UNDER APPLICABLE LAW IF SUCH PERIOD IS GREATER THAN ONE YEAR, AFTER THE OCCURRENCE OF THE INCIDENT THAT RESULTED IN THE LOSS, INJURY OR DAMAGE THAT IS THE BASIS OF SUCH SUIT OR ACTION; AND (2) YOU AND IMAGESELLER WAIVE ALL RIGHTS TO A JURY TRIAL, INSTEAD ELECTING THAT THE DISPUTE BE RESOLVED BY A JUDGE.
This section shall survive the termination of your relationship with ImageSeller.
This Agreement shall be governed by the laws of the state of Colorado without regard to its conflicts of law rules. For purposes of litigating any dispute that may arise directly or indirectly from this Agreement, whether in contract, tort, or otherwise, you hereby submit and consent to the exclusive jurisdiction of the state or federal courts located in Denver, Colorado and you agree that any such litigation shall be conducted only in the courts of the state of Colorado located in Denver, Colorado or the federal courts of the United States located in Denver, Colorado and no other courts.
If any provision of this Agreement is held invalid under any applicable law, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, any such invalid or unenforceable provision or portion thereof shall be deemed, without further action on the part of the parties hereto, modified, amended or limited to the extent necessary to render the same valid and enforceable. In the event that a court of competent jurisdiction determines that any part of any provision of this Agreement is invalid or unenforceable, the parties agree that the court may modify the covenants by reducing the scope, duration, or area of the term or provision, may delete specific words or phrases, or may replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.
Any failure by ImageSeller to enforce your strict performance of any provision of this Agreement shall not constitute a waiver of ImageSeller’s right to substantially enforce such provision or any other provision of this Agreement.
NO THIRD PARTY BENEFICIARY
This Agreement does not confer any third-party beneficiary rights.
CHANGES TO THIS AGREEMENT
We have the right to change the terms of this Agreement without prior notification to you. If we make a change to this Agreement, we will change the effective date above. We suggest you review this Agreement from time to time. If we materially change the terms of this Agreement, we will attempt to provide you with notice of such changes by posting a notice on our Site. Your continued use of the Site after any change to this Agreement will constitute your acceptance of the changes.
If you have any questions regarding this Agreement, please contact us at
414 14th Street
Denver CO 80202