ACDSee 365 Terms of Service

Effective as of August 30, 2016

PLEASE READ CAREFULLY

Legal

Summary

1. Welcome to ACDSee 365

Legal Agreement. This Terms of Service Agreement (“Agreement”) is a legal agreement between you and ACD Systems International Inc. (“ACD”, “we”, “us” or “our”) setting forth, among other things, the terms and conditions for your use of our ACDSee 365  web site located at www.acdsee365.com and any sub domains and related services and software applications (the “Site”). This Agreement does not alter in any way the terms or conditions of any other agreement you may have with us for other products or services.

This Agreement is between you and us and details the terms on which you use our ACDSee 365 web site and related services and software applications. It does not affect any other agreement between us.

By Using This Site, You Accept Its Terms. By using this Site, you accept and agree to the provisions of this Agreement without any reservations, modifications, additions or deletions. If you do not agree to any provisions contained in this Agreement, you are not authorized to use this Site. You may be denied access to this Site, with or without notice to you if you do not comply with any provisions of this Agreement.

By using our Site you agree to the terms of this Agreement.

Modifications to Agreement. We may from time to time modify this Agreement and will post a copy of the amended Agreement on the Site. Therefore, you should frequently review this Agreement to understand its terms and conditions. If you do not agree to, or cannot comply with, the Agreement as amended, you are not authorized to use the Site. You will be deemed to have accepted the Agreement as amended if you continue to use the Site after any amendments are posted on the Site. We reserve the right to refuse to provide our services and products to anyone at any time. We can change this Agreement at any time by placing a notice on the Site. Your continued Use of this Site after we notify you of any changes to these terms indicates that you accept any revisions to this Agreement.

We can change this Agreement at any time by placing a notice on the Site. Your continued Use of this Site after we notify you of any changes to these terms indicates that you accept any revisions to this Agreement.

The “Legal” Version of this Agreement Governs. The “Legal” version of this Agreement is the authoritative one. We have also provided a “Summary” version of this Agreement for your ease of reference only. If there is any conflict between the language of the “Legal” version and the “Summary” version, the “Legal” version will prevail.

The “Summary” version of the Agreement is for reference only. For the authoritative version of this Agreement, see the “Legal” version.

2. ACDSee 365 Hosting Services Terms

ACDSee 365 Hosting Services. Through the Site and other services and applications, ACD makes available to its registered users certain software, tools, services and products (collectively, the “ACDSee Hosting Services”) that enable users of the Site to (i) upload User Submitted Content (defined in Section 3); (ii) edit and manipulate User Submitted Content; (iii) display and distribute such User Submitted Content and modified User Submitted Content to other users on the Site; and (iv) store and retrieve User Submitted Content. ACD reserves the right to add, delete or modify the ACDSee 365 Hosting Services without notice, including the right to charge a fee for use of the ACDSee 365 Hosting Services.

ACDSee 365 media hosting and related services (the “Hosting Services”) allow you to post, edit, share, and store your photographs, video and other content. We can add or delete services at anytime without notice to you. We can also opt to charge a fee for them and change these fees at any time.

ACDSee 365 Hosting Services Terms

By creating an account or by using the ACDSee 365 Hosting Services, you agree to the additional terms and conditions set out in Section B below (the “Hosting Services Terms”) which are part of these Terms of Service.

 


Additional terms about the use and costs of the ACDSee 365 Hosting Services are detailed in Section B below.


3.User Submitted Content

User-Submitted Content. In connection with your use of the Site and the ACDSee 365 Hosting Services, you may upload, submit or otherwise deliver to the Site pictures, graphics, audio, video, data, text, messages, tags or other works of authorship and create new works using the ACDSee 365 Hosting Services (“User‑Submitted Content”).

You may upload your content to the Site and create new content using the ACDSee 365 Hosting Services.

Public or Private Access to User-Submitted Content. You can choose to make your User‑Submitted Content public for anyone to access, restrict access to a limited number of other ACDSee 365 users, or keep User‑Submitted Content private so only you can access it. You can delete any of your User‑Submitted Content at any time.When you delete your User-Submitted Content it is deleted permanently. ACD does not retain a copy of the deleted file(s) and it is not recoverable.

You have the option to keep your content private, share it with only certain folks you identify, or share it with everyone. It’s up to you. If you delete your content, ACD does not keep a copy and it is gone forever.

ACD Not Responsible for User-Submitted Content. User Submitted Content is the sole responsibility of the person from whom such User Submitted Content originated. This means that you, and not ACD are entirely responsible for all User Submitted Content that you upload, post, transmit or otherwise make available on the Site and via the ACDSee 365 Hosting Services.

You are responsible for your content, not ACD.

Exposure to User-Submitted Content. ACD does not control the User Submitted Content posted on the Site and via the ACDSee 365 Hosting Services and, as such, does not guarantee the accuracy, integrity or quality of such User Submitted Content. You understand that by using the Site, you may be exposed to User Submitted Content that is offensive, indecent or objectionable. ACD is only a forum and is not liable for any statements, representations, or User Submitted Content provided by its users in any public forum or private page on the Site.

ACD is not responsible for your content or the content that other people post.

ACD Not Liable for User-Submitted Content. Under no circumstances will ACD be liable in any way for any User Submitted Content, including, but not limited to, any errors or omissions in any User Submitted Content, or any loss or damage of any kind incurred as a result of the use of any User Submitted Content posted, transmitted or otherwise made available on the Site and via the ACDSee 365 Hosting Services.

ACD May Remove User-Submitted Content. Judgments as to the acceptability of User Submitted Content are at the sole discretion of ACD, and ACD reserves the right, and has absolute discretion, to remove, screen or edit any photographs or other User Submitted Content posted or stored on the Site at any time and for any reason without notice.

ACD reserves the right to remove any content from the Site whenever we want.

4. Authorized Users

Age Requirement; Authority. In order to use any of the services or products on our Site, you must be at least 18 years of age to enter into this Agreement on your own behalf. If you are under 18 years of age but at least 13 years of age, you must present this Agreement to your parent or legal guardian, and he or she enter into this Agreement on your behalf. Children under the age of 13 may not register with this Site, and parents or legal guardians may not register on their behalf. By clicking on either the “Get Started”, “Sign Up” or the “Sign In” icon indicating your acceptance to this Agreement, you represent that (i) you have read, understood and agree to be bound by this Agreement; and (ii) you are at least 18 years old, either entering into this Agreement for yourself or entering on behalf of your child or a child in your legal care. If you are a parent or guardian entering this Agreement for the benefit of your child, please be aware that you are fully responsible for his or her use of the services and products on the Site, including all financial charges and legal liability that he or she may incur. If you do not agree to, or cannot comply with, any of these terms and conditions of this Agreement, please do not create an account and do not attempt to access this Site.

You must be at least 13 years old to use the Site. If you’re between 13 and 18, you may only use the Site with the consent of a parent or guardian.

Registration. We reserve the right to restrict certain areas of this Site to our approved registered users. In the event that any area of the Site requires you to register with us prior to our granting you access to such areas of the Site, you agree to provide truthful information, including but not limited to a screen name (“Screen Name”) and password as well as your name and a valid email address (the “Account Information”). You agree to provide accurate Account Information and to update your Account Information as necessary to keep it accurate. ACD will use your Account Information in accordance with its Privacy Policy, which can be found at http://www.acdsee.com/privacy, as described further below under Section 12, “Privacy”.

You need to register to have access to certain areas of the Site. You agree to provide accurate profile information and do your best to keep it updated. Our privacy policy explains how we protect your personal information.

Screen Names. We reserve the right to change a Screen Name for any reason at our sole discretion including, without limitation, if it conflicts with any of the words we have reserved for system use, or trademarks or service marks of our partners or any legal entity.

We can change your screen name if we need to.

5. ACD Intellectual Property

Intellectual Property Rights. As between you and ACD, you acknowledge that ACD owns or has a license to all intellectual property rights in and to the ACDSee 365 Hosting Services and any ACD content provided on this Site.

We own our Site and its content.

Trademarks (And Third Party Trademarks). The following are registered trademarks or trademarks of ACD: ACD, ACDSee and ACDSee logo, ACDSee Online, ACDSee 365 logo as well as certain other ACD trademarks, service marks, graphics, and logos (collectively, the “ACD Trademarks”) used in connection with ACD’s provision of services and products. The Site may contain third party trademarks, service marks, graphics, and logos. You are not granted any right or license with respect to the ACD Trademarks or the trademarks of any third party.

You are not authorized to use trademarks or service marks that aren’t yours.

6. License Granted by ACD

Grant of License. ACD grants to you a limited, non-exclusive, revocable, non-transferable license to access and use the Site and the ACDSee 365 Hosting Services in accordance with and subject to the terms and conditions set forth in this Agreement. ACD reserves all right, title and interest not expressly granted under this license to the fullest extent possible under applicable laws. ANY USE OF THE SITE AND THE ACDSee 365 HOSTING SERVICES NOT SPECIFICALLY PERMITTED UNDER THIS AGREEMENT IS STRICTLY PROHIBITED.

You can use the Site and the ACDSee 365 Hosting Services if you follow the rules.

Restrictions. You agree that you will not: (i) use the Site or the ACDSee 365 Hosting Services to reproduce, transmit, display or distribute any material that infringes the intellectual property rights of any third party including any patent, copyright, trademark, service mark, trade secret, or other proprietary right, in any medium or via any method without ACD’s express written permission; (ii) use our Site in any way that violates the terms of this Agreement; (iii) disassemble, decompile or otherwise reverse engineer the ACDSee 365 Hosting Services; (iv) copy, alter, modify or create any derivative work of the ACDSee 365 Hosting Services, except as expressly permitted herein, or (v) permit or enable any third party to do any of the foregoing. The Site and the ACDSee 365 Hosting Services are owned by ACD and are protected by Canadian and United States intellectual property laws and international treaty provisions. You may not sublicense, assign, or transfer the license granted to you under this Agreement, and any attempt to sublicense, assign, or transfer any part of this Agreement is void.

 

The content you contribute must not infringe on the property rights of others. 

You agree not to violate this Agreement or our intellectual property. 

You can’t transfer this Agreement to someone else.

 

If you violate our property rights or those of third parties, we can terminate your account.

7. Prohibited Acts

Prohibited Acts. You are liable for any illegal or prohibited User Submitted Content that you provide to the Site or to other users, including, for example, infringing, defamatory, or offensive materials. So that the Site is available for all users to enjoy, you may not, and hereby represent, warrant and covenant that you will not, display, post, transmit, email or otherwise make accessible on or through the Site, User Submitted Content that:

       is unlawful, harmful, threatening, tortious, defamatory, libelous, abusive, disparaging, pedophilic, pornographic, obscene, invasive of another’s privacy, hateful, or malicious;

       contains hate propaganda or promotes discrimination or violence against any people on account of their race, national origin, religion, age, gender, disability, or sexual orientation;

       is or could be harmful to minors;

       harasses or advocates harassment of another person;

       involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing or “spamming”;

       promotes information that you know is false, misleading, or promotes illegal activities or conduct;

       is or promotes an illegal or unauthorized copy of another person’s work, such as providing pirated computer programs or links to them, or providing information to circumvent manufacture installed copy protect devices;

       contains restricted password only access pages, or hidden pages or images (those not linked to or from another accessible page);

       provides material that exploits people under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under 18;

       provides instructional information about illegal activities such as making or buying illegal weapons, or providing or creating computer viruses;

       contains a software virus or any other code files or programs that are designed to or have the ability to interrupt, destroy, compromise, or otherwise limit the functionality of any computer software or hardware or telecommunications equipment whether owned by ACD or any other party;

       solicits passwords, or personal identifying information for commercial or unlawful purposes from other users; or

       otherwise violates any local, state, national or other applicable law or regulation.

In addition, you may not, in connection with your use of the Site:

       impersonate any person or entity, including an ACD officer or employee, or falsely misrepresent your affiliation with any other person or entity;

       forge headers or otherwise manipulate identifiers for the purpose of disguising the origin of any User Submitted Content posted or transmitted through or on the Site;

       engage in commercial activities and/or sales (other than the distribution, licensing, sale or other commercialization of your User Submitted Content) without ACD’s prior written consent including, without limitation, contests, sweepstakes, barter, or advertising;

       post or transmit any User Submitted Content that you do not have the right to post or transmit;

       post or submit unsolicited commercial e mail, chain letters, pyramid schemes, or seek or encourage others to engage in these activities;

       disrupt the ordinary flow and operation of any portion of the Site, including causing a screen to scroll faster than another user may be able to type in a chat room or bulletin board environment;

       interfere with or disrupt the Site or any server or network involved with the operation of the Site;

       stalk or harass any other person; or

       collect or “harvest” from the Site the names of other users for the purpose of transmitting to those other users unsolicited commercial messages.



Be respectful of others with the content you post. 





Don’t spam other users, harass them or impersonate anyone. 

Don’t try to break into any other users’ accounts or phish passwords from them.

If you discover this kind of material or activity on the Site, please notify us immediately. ACD does not support, endorse or tolerate any of the foregoing actions or user behaviour.

Let us know if you think anyone is using the Site inappropriately.

Responsibility for Your Conduct. You shall remain solely liable for the User Submitted Content or other information you upload or transmit to this Site, including the discussion forums or interactive areas of the Site. You agree to indemnify and hold harmless ACD from any claim, action, demand, loss, or damages (including attorneys’ fees) made or incurred by any third party arising out of or relating to your conduct, your violation of this Agreement, or your violation of any rights of a third party.

You will compensate ACD if any claim against us is due to your misconduct on the Site, violation of this Agreement, or violation of anyone else’s rights.

8. License to User Submitted Content.

Grant of License to ACD. By submitting User Submitted Content, you represent, warrant and covenant that you own or have the necessary licenses, rights, consents (including without limitation, all consents under applicable privacy laws) or permissions to use and authorize ACD to publish and use all User Submitted Content (except for any pictures, graphics, audio, video, textual or other works provided or made available to you by us (“ACD Content”)) as contemplated by this Agreement. For clarity, you retain all of your ownership rights in your User Submitted Content. However, by submitting the User Submitted Content to ACD, you hereby grant ACD a worldwide, non-exclusive, fully paid, royalty free, sublicensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submitted Content in connection with the Site. You also hereby grant each user of the Site a non-exclusive, fully paid license to access and use any User Submitted Content you share within the Site. When you post User Submitted Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary to facilitate the posting and storage of the User Submitted Content on the Site. The foregoing license granted by you will remain in effect unless and until you remove or delete your User Submitted Content from the Site. You acknowledge and agree that whether or not such User Submitted Content is published on the Site, ACD does not guarantee any confidentiality with respect to any User Submitted Content.



You own your content, but give us rights so we can display, share and store your content. You also grant us the right to sublicense these rights to our storage provider. 

We cannot guarantee confidentiality of your files.

Enforcement. ACD has the right, but not the obligation, to monitor any activity and User Submitted Content on the Site. ACD may investigate any reported violation of this Agreement or complaints and take any action that it deems appropriate in its sole and absolute discretion. Such action may include, but is not limited to, issuing warnings, suspension, restriction or termination of service, and/or removal of posted User Submitted Content. ACD reserves the right and has absolute discretion, to remove, screen or edit any User Submitted Content that violates these provisions or is otherwise objectionable. To comply with legitimate governmental requests, subpoenas or court orders, ACD may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e. name, e mail address, etc.), IP addressing and traffic information, usage history, and posted User Submitted Content. ACD’s right to disclose any such information shall govern over any terms of ACD’s Privacy Policy.

We may investigate your Site activity and content. If we learn you have violated this Agreement, we may remove your content or terminate your service, or both. We will comply with legal demands to disclose your user and usage information and content because if we don’t, we could face severe penalties, including jail.

9. Copyright and Intellectual Property Infringement Complaints

Infringement Warning. ACD respects the intellectual property of others, and we expect all users of the Site to do the same. Allegedly infringing materials on the Site may be removed or suspended in accordance with this Agreement. Repeated infringement by a user of the Site may, in appropriate circumstances, result in a termination of that user’s access to and use of the Site.

We will respect each other’s intellectual property rights.

Notification of ACD. If you believe that your work has been copied and has been posted to this Site in a way that constitutes copyright infringement or is otherwise an infringement of your intellectual property rights, please provide ACD’s Copyright Agent the following written information:

  1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
  2. A description of the copyrighted work or other intellectual property that you claim has been infringed upon;
  3. A description of where the material that you claim is infringing is located on the Site, with enough detail that ACD may find it on the Site;
  4. Your address, telephone number, and e mail address;
  5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
  6. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

ACD’s Copyright Agent for notice of claims of copyright infringement on this Site can be reached as follows: 

ACD Systems International Inc. 
c/o ACDSee 365 Hosting Services
Address: 129-1335 Bear Mountain Pkwy, Victoria, BC, V9B 6T9 Canada
E mail: copyright@acdsee.com

If you think someone has violated your copyright or other intellectual property rights by posting content on the Site, please let us know.

Counter Notification. If you elect to send ACD a counter notification (i.e. in the event ACD has taken down or disabled access to material that you have contributed to the Site in response to a notice of its infringement), to be effective it must be a written communication provided to ACD’s Copyright Agent that includes substantially the following:

  1. an electronic or physical signature of the person authorized to act on behalf of the user;
  2. identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
  3. a statement by you, made under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
  4. your name, address, and telephone number; and
  5. a statement that you consent to the jurisdiction of the Federal Court in the district in which your address is located or, if your address is outside the United States, that you consent to any jurisdiction where ACD may be found, and that you will accept service if process originates from the complainant who provided an Infringement Notice or from the agent for such person.

Such counter notification should be sent to ACD’s Copyright Agent at: 

ACD Systems International Inc. 
c/o ACDSee 365 Hosting Services
Address: 129-1335 Bear Mountain Pkwy, Victoria, BC, V9B 6T9 Canada
E mail: copyright@acdsee.com

If we remove your content because someone has complained to us that it infringes their copyright or other intellectual property rights and you believe the complaint is not valid, please let us know.

10. Service Interruptions

Service Interruptions. You acknowledge that: (i) your access to and use of the Site and/or ACDSee 365 Hosting Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Site and/or the ACDSee 365 Hosting Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we shall also be entitled, without any liability to you, to suspend access to any portion or all of the Site and/or the ACDSee 365 Hosting Services at any time (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any service or product; (b) in the event of a denial of service attack or other attack on the Site or other event that we determine, in our sole discretion, may create a risk to the applicable service or product, to you or to any of our other customers if the service or product were not suspended; or (c) in the event that we determine that any service or product is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”). We shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension.

We’ll do our best to have the Site available but need some time to do maintenance and are not responsible for any losses, including loss of data that you may suffer in the event of an outage.

Notice of Interruptions. To the extent we are able, we will endeavor to post updates on the Site regarding any Service Suspension and resumption of service following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.

We will try give you notice of any interruption of service but we are not responsible for any damages to you if we do not.

11. Security

Your Responsibility for Security. You are solely responsible for maintaining the confidentiality of your Email and password associated with your account and for restricting access to your password and to your computer while logged into the Site. You agree to accept responsibility for all activities that occur under your account or from your computer.

You are solely responsible for anything uploaded to your account, even if it wasn’t you. Guard your password.

No Security Guarantee. We endeavor to use reasonable security measures to protect against unauthorized access to your account and to any User Submitted Content you designate as private or that you restrict to a limited number of other ACDSee 365 Hosting Services users. We cannot, however, guarantee absolute security of your account, your User Submitted Content or the personal information we collect, and we cannot promise that our security measures will prevent third party “hackers” from illegally accessing the Site or its contents. You agree to immediately notify ACD of any unauthorized use or your account, or any other breach of security, and to accept all risks of unauthorized access to the Site, the User Submitted Content, Account Information and any other information you provide to ACD.

We will use reasonable measures to keep your account and content secure, but cannot guarantee they won’t be hacked. We are not liable for any unauthorized or hacked usage of your account or content. You agree to notify us if you are aware of any unauthorized activity.

Disclaimer and Indemnity. ACD will not be responsible for any losses arising out of the unauthorized use of your account and you agree to indemnify and hold harmless ACD, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for any improper, unauthorized or illegal uses of your account.

We are not liable for any unauthorized uses of your account.

12. Privacy

Privacy Policy. Your use of this Site and the ACDSee 365 Hosting Services is also subject to ACD’s Privacy Policy, http://www.acdsee.com/privacy, which is incorporated by reference and made a part of this Agreement. It is important that you read and understand the terms of ACD’s Privacy Policy. If you are a resident of any country outside the United States, including, without limitation, Canada or any country within the European Union, you understand and agree that we store and process your personal information on computers located in the United States, and that by providing any information to ACD, you consent to the transfer of such information to the United States. ACD may cooperate with and disclose information (including your Account Information) to any authority, government official or third party, without giving any notice to you, in connection with any investigation, proceeding or claim arising from an asserted illegal action or infringement whether related or unrelated to your use or misuse of this Site and/or the ACDSee 365 Hosting Services.

Our privacy policy explains how we protect your personal information.

13. Feedback

Feedback. In the event you elect, in connection with any of the Site or the ACDSee 365 Hosting Services, to communicate to us suggestions for improvements to the Site or the ACDSee 365 Hosting Services (collectively, “Feedback”), we shall own all right, title, and interest in and to the Feedback and we shall be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to us and waive all you moral rights in the Feedback, and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the Feedback. Feedback can be provided at http://community.acdsee.com/forums/. You agree that: (a) your Feedback does not contain confidential or proprietary information; (b) ACD is not under any obligation of confidentiality, express or implied, with respect to the Feedback; (c) ACD shall be entitled to use or disclose (or choose not to use or disclose) such Feedback for any purpose, in any way, in any media worldwide; (d) ACD may have something similar to the Feedback already under consideration or in development; and (e) you are not entitled to any compensation or reimbursement of any kind from ACD under any circumstances.

If you submit a suggestion or feedback to us, it becomes our sole property.

14. Third Party Websites, Services and Software

Links. The Site may contain links to other websites, services or software provided by third parties (“Third Party Content”). Links from this Site to Third Party Content are provided for your convenience only and are not investigated, monitored or checked for accuracy, appropriateness, or completeness by ACD and ACD is not responsible for any Third Party Content accessed through the Site, including without limitation the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Content. Inclusion of, linking to, or permitting the use or installation of any Third Party Content does not imply approval or endorsement thereof by ACD. If you decide to access or install the Third Party Content, you do so at your own risk and you should be aware that ACD terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third Party Content you navigate from the Site or relating to any Third Party Content you use or install. ACD reserves the right to change, modify or delete links to Third Party Content without notice.

We aren’t responsible for any content posted on a third party site that links to us or mentions us.

Promotions. ACD or its business partners may present advertisements or promotional materials on or through the Site. Your dealings with, or participation in promotions of, any third party advertisers on or through the Site are solely between you and such third party and your participation is subject to the terms and conditions associated with that advertisement or promotion. You agree that ACD is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third party materials on the Site. Reference to any products, services, processes, or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by ACD.

We are not responsible for any third party promotions you may participate in through the Site, and do not endorse any third party products and services you may learn about through the Site.

15. Term and Termination

Term. This Agreement is in effect from the date you accept this Agreement until terminated by either you or ACD.

Termination by You. You may terminate this Agreement at any time by notifying ACD.

You can terminate this Agreement at any time.

Termination by ACD for Convenience. In the event ACD terminates this Agreement or any part of it for convenience, including but not limited to, non-renewal by you of any fees for use of ACDSee 365 Hosting Services, to the extent we are able, we will endeavor, but are not obligated, to provide 30 day prior notice.

We will try to give you 30 day notice if we need to terminate the agreement for convenience or if you decide not to renew any of your paid services so you have time to remove your content before we delete it.

Termination by ACD for Breach. ACD may terminate this Agreement immediately upon notice to you in the event of breach or violation of this Agreement by you or for non-payment of any fees owed by you in connection with ACDSee 365 Hosting Services.

We may terminate this Agreement if you breach it or don’t pay your fees.

Effect of Termination. Upon termination of this Agreement you acknowledge that ACD will delete your account, your Screen Name and all your User Submitted Content. You acknowledge that ACD is not responsible for keeping a back-up copy of your User Submitted Content and ACD shall have no liability for the loss of User Submitted Content. Any pre-paid fees will not be refunded.

Regardless of why this Agreement is terminated, we will delete your content but we can’t refund any fees already paid or return your content to you.

Surviving Obligations. All provisions of this Agreement which by their nature should survive expiration or termination shall survive the expiration or termination of this Agreement, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability. Termination of your access to and use of the Site and the ACDSee 365 Hosting Services shall not relieve you of any obligations arising or accruing prior to such expiration or termination or limit any liability which you otherwise may have to ACD, including without limitation any indemnification obligations contained herein.

Once Agreement is ended, you still have to abide by certain portions of it.

16. DISCLAIMERS

“AS IS” BASIS. THE ACDSEE 365 HOSTING SERVICES AND SITE (INCLUDING ALL OF THE CONTENT, ACD CONTENT, SERVICES AND PRODUCTS AVAILABLE ON THE SITE) ARE PROVIDED TO YOU “AS IS.” ANY USE OF THIS SITE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ACD DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON INFRINGEMENT. ACD MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT THIS SITE AND THE ACDSEE 365 HOSTING SERVICES WILL BE FREE FROM LOSS, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND ACD DISCLAIMS ANY LIABILITY RELATING THERETO. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ACD OR OTHERS WILL CREATE A WARRANTY AND NEITHER YOU NOR ANY THIRD PARTY MAY RELY ON ANY SUCH INFORMATION OR ADVICE.

Your use of the Site and the ACDSee 365 Hosting Services is entirely at your own risk. We have no responsibility for any damages you may suffer by using the Site and the ACDSee 365 Hosting Services.

WARRANTY DISCLAIMER. ACD MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT USE OR RESULTS OF THE USE OF THE ACDSEE 365 HOSTING SERVICES AND THE SITE (INCLUDING ALL OF ITS CONTENT, SERVICES OR SERVICES) ARE OR WILL BE ACCURATE, RELIABLE, CURRENT, UNINTERRUPTED OR WITHOUT ERRORS. WITHOUT PRIOR NOTICE, ACD MAY MODIFY, SUSPEND, OR DISCONTINUE ANY ASPECT OR FEATURE OF ACDSEE 365 HOSTING SERVICES AND THE SITE OR YOUR USE OF THIS SITE AND THE ACDSEE 365 HOSTING SERVICES. IF ACD ELECTS TO MODIFY, SUSPEND, OR DISCONTINUE THE ACDSEE 365 HOSTING SERVICES AND THE SITE, IT WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY.

The Site is not guaranteed to be available without interruption or without error. We can modify or suspend or discontinue services at any time without notice to you. If there is interruption, error, modification, suspension or discontinuance of services, we have no liability to you for damages.

ACD NOT RESPONSIBLE FOR YOUR INFORMATION. YOU ACKNOWLEDGE THAT YOUR SUBMISSION OF ANY INFORMATION (INCLUDING BUT NOT LIMITED TO USER SUBMITTED CONTENT) TO US IS AT YOUR OWN RISK. ACD DOES NOT ASSUME ANY LIABILITY TO YOU WITH REGARD TO ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.

You agree to use our Site and the ACDSee 365 Hosting Services at your own risk.

ACD NOT RESPONSIBLE FOR THIRD PARTY CONTENT. SOME OF THE CONTENT, PRODUCTS, AND SERVICES AVAILABLE THROUGH THE ACD SITE MAY INCLUDE MATERIALS THAT BELONG TO THIRD PARTIES. YOU ACKNOWLEDGE THAT ACD ASSUMES NO RESPONSIBILITY FOR SUCH CONTENT, PRODUCTS OR SERVICES.

We are not responsible for third party content.

17. LIMITATION OF LIABILITY

LIMITATION OF LIABILITY.  IN NO EVENT WILL ACD BE LIABLE TO YOU FOR INDIRECT, DIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, AGGRAVATED, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, LOSS OF PROFITS, BUSINESS INTERRUPTION, CORRUPTION OF FILES, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LOSS) EVEN IF ACD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  

We are not responsible for any damages, including lost data or damage to your equipment.

OUR TOTAL LIABILITY TO YOU IS LIMITED. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ACD ARISING OUT OF OR RELATING TO THE USE OF THE SITE EXCEED $5.00 OR THE COMPENSATION YOU PAID ACD, WHICHEVER IS GREATER.

Our total liability to you will be the greater of $5.00 or the fees you have paid us (if any).

APPLICATION OF LIMITATIONS. THE LIMITATIONS OF LIABILITY AND DAMAGES EXCLUSIONS OF THIS AGREEMENT APPLY TO ALL CAUSES OF ACTION AND REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY.

The limitation on our total liability to you applies regardless of the legal basis of your claim.

EXCLUSIONS MAY NOT APPLY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY OR MAY NOT APPLY TO YOU.

You may have additional rights under the laws of your home jurisdiction.

18. INDEMNITY

INDEMNITY. YOU WILL INDEMNIFY AND HOLD ACD, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY SUITS OR CLAIMS ARISING OUT OF (I) YOUR BREACH OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY INFRINGEMENT BY YOU OF THE COPYRIGHT OR INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; OR (II) YOUR USE OR MISUSE OF THE SITE.

You agree to be responsible to us for any damages if you breach the terms of this Agreement or misuse the Site.

19. GENERAL

Your Equipment. You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Site or otherwise use the ACDSee 365 Hosting Services, including, without limitation, modems, hardware, software, internet access and long distance or local telephone service. You shall be responsible for ensuring that such equipment or ancillary services are compatible with the Site and ACDSee 365 Hosting Services.

You are responsible to provide equipment and internet connectivity to use the Site.

U.S. Government License Rights. All ACDSee 365 Hosting Services provided to the U.S. Government are provided under the commercial license rights and restrictions generally applicable under this Agreement.

If you are a US Government user you need to comply with these commercial regulations.

Export Compliance and Restrictions. You shall, in connection with your use of Site and the ACDSee 365 Hosting Services, and all information downloaded from the Site, comply with all applicable export, import and re-export control laws and regulations, including but not limited to the US Export Administration Regulations, the International Traffic in Arms Regulations, and country specific economic sanctions programs implemented by the Office of Foreign Assets Control and the Canadian Export and Import Permits Act.

You are responsible to only share your content and content of others in accordance with export laws.

Governing Law and Arbitration. This Agreement shall be governed exclusively by the laws of the Province of British Columbia and the laws of Canada applicable therein excluding application of any conflict of laws principles that would apply a different body of law and excluding the United Nations Convention on Contracts for the International Sale of Goods and excluding the International Sale of Goods Act (B.C.). Except expressly as provided in this Agreement for copyright or other intellectual property infringement complaints, all disputes arising out of or in connection with this Agreement, or in respect of any defined legal relationship associated therewith or derived therefrom, will be referred to and finally resolved by arbitration under the rules of the British Columbia International Commercial Arbitration Centre. The appointing authority will be the British Columbia International Commercial Arbitration Centre. The case will be administered by the British Columbia International Commercial Arbitration Centre in accordance with its rules. The place of arbitration will be Victoria, British Columbia, Canada. The number of arbitrators will be one. The language of arbitration will be English. Notwithstanding the foregoing, nothing in this Agreement will prevent us from seeking injunctive or other equitable relief before any court having jurisdiction over you or otherwise over such subject matter.

This Agreement is made under the laws of British Columbia, Canada, and all disputes over this Agreement or our services will be arbitrated in Victoria, British Columbia.

No Partnership. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind ACD in any respect whatsoever.

This Agreement doesn’t mean we are partners.

Notices. ACD may send notices to you with respect to your use of the Site by sending an email message to the email address listed in your Account Information or by a posting a note on the Site when you access your account. You agree that we may provide notice to you through such means. Unless otherwise stated in the notices, the notices will become effective immediately.

This is how we send notices to each other.

No Waiver. No failure or delay in enforcing any right or exercising will be deemed a waiver of any right or remedy.

If we choose not to exercise any of our rights we can still exercise them in the future.

Severability. If any provision of this Agreement is unenforceable or invalid for any reason whatever, such unenforceability or invalidity shall not affect the enforceability or validity of the remaining provisions of this Agreement and such provision shall be severable from the remainder of this Agreement.

If a portion of this Agreement is found not to be legally binding, the rest of this Agreement will still hold true.

English Language Version is Authoritative. Where ACD has provided you with a translation of the English language version of this Agreement, then you agree that the translation is provided for your convenience only and that the English language versions of the Agreement will govern your relationship with ACD.

Even if these terms are translated into a different language, the English terms govern.

ACKNOWLEDGEMENT. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND WILL BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER ACKNOWLEDGE THAT THIS AGREEMENT REPRESENTS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US AND THAT IT SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.

You acknowledge you understand and accept this Agreement and that this Agreement overrides any previous terms of service agreements you had regarding the Site.

 

 

SECTION B

ACDSee 365 Hosting Services Terms

 

You may use the Site and the ACDSee 365 Hosting Services only in accordance with these Terms and the Terms of Service of which they are a part. In the event of any conflict between these ACDSee 365 Hosting Services Terms and the other provisions of the Terms of Service, these ACDSee 365 Hosting Services Terms will control.

1.   Subscriptions

The ACDSee 365 Hosting Services will only be available to users (a) who register for a free trial (when available) or for a subscription to the ACDSee 365 Hosting Services ("Subscriptions") and (b) who pay in full the Subscription fees ("Subscription Fees") applicable to the level of Subscription selected (the "Subscription Plan"). ACD currently accepts VISA, Discover, Diner’s, MasterCard, JCB and American Express credit cards and PayPal payment services. The various Subscription Plans ACD offers and the services, features and Subscription Fees applicable to such Subscription are available on the Site. By subscribing, you agree to pay all applicable Subscription Fees and other charges in accordance with the particular Subscription Plan you select.

When you first register with ACDSee 365, ACD enables you to use the ACDSee 365 Hosting Services without charge for a 30 day period (a "Free Trial"). After the Free Trial ends, your  Subscription term will begin once you purchase a Subscription plan. You may terminate your Subscription at any time by sending an email to support@acdsee.com (see “2. Term and Upgrades” below for further details).

The ACDSee 365 Hosting Services are intended to be used by individual ACD account holders for limited distribution of photos and videos. The ACDSee 365 Hosting Services may not be used for commercial activities, whether they be for profit or non-profit. ACD, in its sole discretion, reserves the right to limit, suspend or terminate your use of the ACDSee 365 Hosting Services if ACD determines you are misusing them.

2.   Term and Upgrades

Subscriptions are for the term you select when you subscribe. THE TERM WILL AUTOMATICALLY RENEW AT THE END OF EACH TERM FOR SUCCESSIVE TERMS OF THE SAME DURATION AS THE TERM ORIGINALLY SELECTED UNLESS THE SUBSCRIPTION IS TERMINATED AND/OR CANCELED BY YOU OR ACD PRIOR TO THE END OF SUCH TERM. YOU MAY CANCEL YOUR SUBSCRIPTION BY SENDING AN EMAIL TO  SUPPORT@ACDSEE.COM  THAT PROVIDES CLEAR WRITTEN NOTICE OF SUCH REQUEST. You will receive a full refund if you cancel your monthly or annual subscription within 30 days of your initial purchase. You will not receive a refund if you cancel after 30 days of your original purchase and your subscription will remain active until its expiry date but it will not be automatically renewed. You agree that upon any automatic renewal, the credit card designated on your account will be billed the applicable Subscription Fee then in effect at the time of renewal. If you notify ACD that you wish to upgrade to a higher Subscription level, then the credit card designated on your account will be billed for the difference in price, prorated for the remainder of your term. You acknowledge that the amount of the recurring charge billed to your credit card may change if the applicable Subscription Fee increases or if you change your Subscription level or term. All Subscription Fees are nonrefundable, and upon termination, cancellation or discontinuation of a Subscription for any reason, you will not receive a refund for any Subscription Fees or other amounts previously charged to you, or for any unused portion of any Subscription.

3.   Interruptions or Discontinuation of Hosting Services; Changes to ACDSee 365 Hosting Services Hosting Services and Terms of Service.

ACD reserves the right at any time, in its sole discretion and without notice, to suspend, modify, discontinue or permanently cancel the ACDSee 365 Hosting Services, or portions thereof; and the Subscriptions and Subscription Plans, including making changes to any policies, features and terms applicable thereto. If the ACDSee 365 Hosting Services, or any part thereof, to which you subscribe are permanently discontinued or canceled by ACD, your Subscription will terminate, and we will have no further liability to you. In addition, there may be occasions when the ACDSee 365 Hosting Services are interrupted such as for maintenance, upgrades, system or equipment failure or otherwise. ACD WILL HAVE NO LIABILITY TO YOU FOR ANY INTERRUPTION, SUSPENSION, DISCONTINUANCE OR UNAVAILABILITY OF THE ACDSEE 365 HOSTING SERVICES FOR ANY REASON, OR FOR ANY LOSS OF OR INABILITY TO ACCESS ANY MEDIA OR MATERIALS HOSTED ON THE SITE. YOU ARE SOLELY RESPONSIBLE FOR MAKING AND SAFEKEEPING, BACKUP COPIES OF MEDIA OR OTHER MATERIALS YOU POST TO THE SITE.

4.   Termination of Services.

You may request termination of a Subscription at any time by sending an email to support@acdsee.com that provides clear written notice of such request, including the name you provided to ACD at the time you ordered your Subscription. When ACD receives your termination request, ACD will terminate your Subscription if it has the necessary information to do so. ACD will notify you of termination via email. ACD may request additional information from you prior to terminating your Subscription(s). A Subscription is not terminated in this manner until you receive confirmation of termination from ACD.

Additionally, ACD may terminate a Subscription, or any user's access to and use of the Site or the ACDSee 365 Hosting Services, at any time at its sole discretion which termination shall be effective immediately. If you violate the Terms of Service, ACD in its sole discretion may (a) require you to remedy any violation thereof and/or (b) take any other actions that ACD deems appropriate to enforce its rights and pursue available remedies.

All Subscription Fees are nonrefundable, and upon termination, cancellation or discontinuation of a Subscription for any reason, you will not receive a refund for any Subscription Fees or other amounts previously charged to you, or for any unused portion of any Subscription. Upon termination, any User Content hosted on the Site may no longer be retrieved, so you should make a backup copy of any such User Content on a regular basis and before terminating your account.

You may change your email or the credit card information for your account by using the Account Settings or by sending an email to support@acdsee.com that provides clear written notice of the requested change, including the name currently associated with your ACD Subscription. If the credit card designated on your account is invalid and cannot be billed for the renewal Subscription Fee, then ACD may terminate your account for nonpayment. If ACD does not have a current, working email address, then you may not receive important notices from us regarding your account, which may include notices regarding termination. If your account is terminated and ACD cannot reach you due to an invalid email address or for any other reason, then ACD will endeavor to retain your User Content on the Site for at least 30 days after termination. However, ACD cannot guarantee that your User Content will remain on the Site after termination or that you will receive notice of such termination, so you should make a backup copy of any such User Content on a regular basis.

5.   Use of User Information.

In the event that you at any time obtain access to any ACD user information, whether directly from ACD or otherwise, including user names and emails (collectively the “User Information”), you agree that you may not use any such User Information in any manner except as may be specifically authorized by ACD to carry out the purpose for which such User Information was provided. Without limiting the foregoing, you may not share such User Information with any third parties or use it for any marketing purposes of any kind. Further, you agree not to use such User Information in any manner that would be in violation of ACD’s Privacy Policy. In no event will ACD be obligated to provide you with any such User Information. You agree that this provision shall apply both during and after the term of your Subscription.

6.   Pricing; Payment Terms

All prices are listed in U.S. dollars, Euros, and Japanese Yen and are valid until altered by us. ACD currently accepts VISA, Discover, Diner’s, MasterCard, JCB and American Express credit cards and PayPal payment services. ACD reserves the right to change the payment methods it accepts at any time without notice. If we are unable to process a payment using your credit card on file, we may, but are under no obligation to, call you using your telephone number on file to ask whether you wish to use an alternative form of payment. We may terminate your Subscription, withhold upgrades to the Services, and take such other action as appropriate if we are unable to process your credit card payment and you do not provide an alternative form of payment. You agree to reimburse ACD for any and all costs incurred in collecting amounts owed by you to ACD, including, without limitation, attorneys' fees and costs of collection agencies.

7.   Pricing

All prices and terms are subject to change without notice.  Please visit http://www.acdsee.com/ for pricing details and other information.

 

 

 

ACDSee 365 Terms of Service August 30, 2016