PhotoGain.com Terms of Use

Member Agreement

PhotoGain.com maintains a website site, www.PhotoGain.com ("Website"), to which registered content providers ("Members") can upload image files for the purpose of allowing PhotoGain.com to act as agent for licensing image rights to other users. By registering with PhotoGain.com for the purpose of providing content, Member agrees to the following:

Consent.
You must be at least 18 years of age to register with PhotoGain.com to provide content. PhotoGain.com may require that you provide sufficient proof that are at least 18 years of age. Minors can access PhotoGain.com only by having their parent or legal guardian register on their behalf. By opening such an account, the parent or legal guardian authorizes the minor to use and agrees to be bound personally by the terms and conditions of this agreement. PhotoGain.com may elect at its sole discretion to monitor any area or records pertaining to the Website for compliance with this agreement or for any other reason.
Uploading Content and Rights.
By uploading content such as image files, Member agrees to give PhotoGain.com and all users irrevocable nonexclusive royalty-free rights to use the content for any purpose including publication, display, modification, and creation of derivative works. PhotoGain.com has the right to license any content up until the time Member removes the file from the Website. Member may not remove photos from the Website if there are pending download transactions, even if Member chooses to terminate his or her account.
Compensation.
PhotoGain.com will pay Member the fee specified on the Website or by separate schedule for each download of an image file by a user.
Copyright.
The copyright of all content uploaded by Member is retained by Member. Member may not upload content to which he or she does not own the copyrights.
Member Warranties and Responsibilities.
1. Registration. Member warrants that he or she has provided PhotoGain.com with accurate, complete, and updated registration information while registering and agrees to correct and update that information to ensure its accuracy and completeness at all times.
2. Account Responsibility. All members who register online for PhotoGain.com will receive a password and a username ("Account"). Member is entirely responsible for any and all activities conducted through his or her Account. Member may permit another individual to use the Account subject to Member's supervision and assumption of all resulting liabilities. Member agrees to notify PhotoGain.com immediately of any unauthorized use of Member's password or accounts as well as of any other breach of security.
3. Usernames. Upon your registration as a Member of PhotoGain.com, you may be asked to choose a Username to identify yourself to other Members and PhotoGain.com staff. You may not select or use the Username of another Member, or a name which violates any third party's trademark right, copyright, or other proprietary right, which is or may be illegal, which may cause confusion, or which PhotoGain.com deems in its discretion to be vulgar or otherwise offensive. PhotoGain.com reserves the right to delete any vulgar or otherwise offensive Member name, or to require deletion thereof.
4. Former Members. Members whose accounts have been terminated by PhotoGain.com may not access PhotoGain.com in any manner or for any reason without the express written permission of PhotoGain.com. Active Members may not knowingly allow former Members who have been terminated to use the active Members' accounts.
5. By uploading content such as image files, Member warrants that he or she owns the copyright to it.
6. By uploading content, Member warrants that the content does not depict subject matter in a manner that violates any laws.
7. By uploading content, Member warrants that the uploading was not done with the intent to harass, threaten, embarrass or cause distress, unwanted attention, or discomfort upon another person or entity.
8. By uploading an image of a person or people, Member warrants that Member possesses a legally executed model release giving Member clear rights to the image. Member agrees to deliver a legal copy of said model release to PhotoGain.com on demand.
Refunds for Image Purchases
Image purchases are non-refundable. In the event that a refund is made, there will be a $20 processing fee assessed to offset costs levied to PhotoGain.com by the banking and credit card institutions.
Indemnification
Member shall indemnify, defend and hold harmless PhotoGain.com, its officers, directors, employees, partners, associates, affiliates, joint venturers, agents and representatives, from any and all claims based on allegations which, if true, would constitute a breach of any of the foregoing warranties, and any and all liabilities, losses, damages, expenses (including attorneys' fees and costs) and damages in consequence thereof. PhotoGain.com reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification, which shall not excuse Member's indemnity obligations.
Control of Operations
1. PhotoGain.com, in its sole discretion, may remove any content uploaded to the Website including that appearing to infringe the intellectual property rights of others.
2. Member Privacy.
  PhotoGain.com may access and disclose any information about Member, Member's account(s), or any content that Member has provided to the Website if PhotoGain.com believes in good faith that such action is reasonably necessary to enforce this Agreement, its copyright policy, to comply with the law and legal process, to operate its systems properly, to protect itself, its members, or users.
3. PhotoGain.com reserves the right, but does not assume the responsibility, to restrict conduct which PhotoGain.com deems in its discretion to be harmful to individual members, damaging to the communities that use PhotoGain.com, or in violation of PhotoGain.com's or any third party's rights.
Disclaimers
1. PhotoGain.com expressly disclaims all warranties and conditions of any kind, either express or implied, including without limitation any implied warranties or conditions of merchantability, fitness for a particular purpose, non-infringement of third party rights, and those arising from a course of dealing or usage of trade.
2. PhotoGain.com, its licensors, and subcontractors do not warrant any connection to, compatibility with, transmission over, nor results or use of, any network connection or facilities provided (or failed to be provided) through PhotoGain.com. From time to time the porting of particular content may not be feasible and PhotoGain.com may remove any such content from the Website without any liability to Member. Member is responsible for assessing its own computer and transmission network needs, and the results to be obtained therefrom.
3. PhotoGain.com assumes no responsibility for any actions or liabilities arising from the possession or use of images, photos, files or software obtained from PhotoGain.com.
4. PhotoGain.com makes no warranty that service will be uninterrupted, timely, secure, or error free. PhotoGain.com makes no warranty as to the use or the results that may be obtained from the use of PhotoGain.com.
5. PhotoGain.com makes no warranty with respect to any related software or hardware used or provided by PhotoGain.com in connection with PhotoGain.com. Any patent, copyright, trademark, trade secret or warranty infringements, whether actual or alleged, are the direct responsibility of the manufacturer of said hardware or software product.
Limitation of Liability
Member acknowledges that PhotoGain.com shall not assume or have any liability for any action by PhotoGain.com or its affiliates and licensees with respect to the use of content. To the fullest extent permitted by applicable law, including but not limited to, negligence, PhotoGain.com shall not be liable to Member for any indirect, incidental, special or consequential damages (including, without limitation, damages or loss of business, lost profits, business interruption, loss of business information, or any other pecuniary loss, even if PhotoGain.com has been advised of the possibility of such damages, in connection with PhotoGain.com or with any other product or service provided by PhotoGain.com, or resulting from the use of or the inability to use the Website or any transaction entered into through or from PhotoGain.com, or from unauthorized access to or alteration of your transmissions, data, or account. Member specifically agrees that PhotoGain.com is not responsible or liable to Member or anyone else for any threatening, defamatory, obscene, offensive or illegal conduct or speech of any other party or any infringement or violation of another's rights, including intellectual property rights, rights of publicity, or rights of privacy. PhotoGain.com's liability to you for breach of this agreement is limited solely to $10.
Termination
Either you or PhotoGain.com may terminate your account with PhotoGain.com at any time with or without cause. Your only right with respect to any dissatisfaction with any (i) Agreement term or policy or practice of PhotoGain.com in operating PhotoGain.com, (ii) content available through PhotoGain.com or change therein, or (iii) amount or type of fees or billing methods, or change therein, is to terminate your account with PhotoGain.com by notifying PhotoGain.com Customer Service of your desire to terminate by e-mail. Your notice of termination will be effective upon receipt by PhotoGain.com, or upon receipt of confirmation if confirmation is requested. As noted above in the Section entitled "Uploading Content and Rights", any photos that have pending download transactions must remain available for download until those transactions have been completed successfully, regardless of whether Member chooses to terminate his or her account.
Impermissible Conduct
Member may not upload content which is unlawful and agrees to use PhotoGain.com only for lawful purposes. Member may not post to or use PhotoGain.com to transmit sexually explicit images or other content which is deemed by PhotoGain.com to be generally offensive to the public or harmful to minors. Any conduct by Member that in PhotoGain.com's sole discretion restricts or inhibits any other Member, person or entity from using or enjoying PhotoGain.com or another service will not be permitted and shall entitle PhotoGain.com to immediately terminate the membership without notice.
Severability.
If any term or provision of this Agreement is found to be unenforceable for any reason, this Agreement shall remain in full force and effect and shall be fully enforceable on its remaining terms and conditions.
Arbitration
A material part of this contract is the Agreement to arbitrate. Any and all disputes arising out of, under or in connection with this Agreement, with the exception of copyright claims, including without limitation, its validity, interpretation, performance and breach, shall be submitted to arbitration in Knoxville, Tennessee. Judgment upon any award rendered may be entered in the highest court of the forum having jurisdiction. This Agreement, its validity and effect, shall be interpreted under, and governed by, the laws of the State of Tennessee, and you agree that the arbitrators shall award all costs of arbitration, including legal fees, plus legal rate-of-interest to the successful party. Copyright infringement claims shall be brought in the Courts of the State of Tennessee. You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery.
Legal Fees and Jursdiction
If PhotoGain.com is obligated to go to court, rather than arbitration, to enforce any of its rights, or to collect any fees, you agree to reimburse PhotoGain.com for its legal fees, costs and disbursements if PhotoGain.com is successful. You agree that the Courts of the State of Tennessee are the agreed and appropriate forums for any such suit, and consent to service of process by registered mail or overnight courier with proof of delivery.
Entire Agreement
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

This Agreement comprises the entire agreement between PhotoGain.com and Member, and supersedes any prior agreements. PhotoGain.com reserves the right, at its discretion, to revise this Agreement at any time, and such revision shall be effective immediately upon the posting of the revised Agreement at the Website. You agree to review the Agreement periodically to become aware of such revisions. If any such revision is unacceptable to you, you may terminate your membership as provided in the Section entitled "Termination". Your continued use of PhotoGain.com following posting of the revised Agreement on the Website shall be deemed to be acceptance of all such revisions.

Questions? Please contact us at:

PhotoGain.com
10116 Tan Rara Dr.
Knoxville, TN 37922

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