IMPORTANT – READ CAREFULLY: YOUR USE OF GUMPTION ONLINE SERVICES IS CONDITIONED UPON YOUR COMPLIANCE AND ACCEPTANCE OF THESE TERMS.
BY CLICKING THE “I AGREE” BUTTON OR BY UTILIZING THE SERVICES OF GUMPTION ONLINE SERVICES INC. (“GUMPTION”) YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
This is a legal agreement (also referred to as the “Terms of Service”) between You and GUMPTION for the use of certain electronic Services provided by GUMPTION and which kept you have elected to use or receive. “You” refers to either (a) the individual or entity that registered and/or provided GUMPTION with their credit card or other payment mechanism for the Services or, (b) if the Services are being purchased on behalf of a third party by an authorized party, “You” also refers to that third party on whose behalf the Services are being purchased or initiated. GUMPTION provides its Web Site and associated services to you conditioned on your acceptance without modification of the following Terms of Service.
Your use of the GUMPTION Web Site and its associated Services constitutes your agreement to all terms, conditions, notices, warranty disclaimers, limitations of liability and termination provisions contained herein. In addition, when using specific GUMPTION Services, you and GUMPTION will be subject to any guidelines or rules applicable to these Services that GUMPTION may communicate to you or post from time to time. These guidelines or rules are considered included in the Terms of Service.
ACCESS TO SERVICES
To use the Services, You must obtain and pay any fees for access to the World Wide Web ("WWW") and provide all equipment necessary to make such connection, including a computer and any other required access devices. You agree to use a browser that supports a data security protocol compatible with the protocol used by GUMPTION (which at present is the Secure Socket Layer (SSL) protocol).
YOUR REGISTRATION INFORMATION MUST BE ACCURATE, CURRENT AND COMPLETE
In consideration of your use of the Services, You agree to: (a) provide true, accurate, current and complete information about yourself and your business as prompted by the GUMPTION Services ("Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.
You agree to provide GUMPTION with your email address, promptly provide GUMPTION with any changes to your email address and accept communications from GUMPTION at the email address you specify.
You will not provide inaccurate, incomplete, outdated or misleading Registration or other information, e-mail addresses, create a false identity or manipulate identifiers to mislead or to disguise the origin of any information stored on the Site or transmitted through the Services, or impersonate or otherwise misrepresent any affiliation with any person or entity. If You provide any information that is untrue, inaccurate, not current or incomplete, or GUMPTION has reasonable grounds to believe such information is untrue, inaccurate, not current or incomplete, GUMPTION has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
ACCESS, PASSWORDS AND SECURITY
You will receive an account login link and upon completing the registration process, agreeing to the TERMS OF SERVICE and approval of your application by GUMPTION. You are responsible for maintaining the confidentiality of your account and password, and are fully responsible for all activities that occur under your account. You agree immediately to notify GUMPTION if you become aware of any loss, theft or unauthorized use of your account login and/or password.
GUMPTION will provide a customer service telephone number or other customer service contact method on the Web site with respect to the Service, which customers can use to pose questions or seek information regarding the operation of the Service. GUMPTION may impose pricing or fees with respect to certain levels of customer service, and subject to your being advised in advance of the amount or nature of those fees, you agree to their payment in accordance with the payment method you have provided for the use of the Service.
FEES
All fees are payable in Canadian funds (US RESIDENTS IN US FUNDS) unless invoiced or charged by GUMPTION in another currency, in which case the fees must be paid in the currency invoiced. You agree to pay all service fees, if any, GUMPTION charges you for your use of the Service. You acknowledge and agree that should fees or charges not be paid in a timely manner, GUMPTION may, in its sole discretion, discontinue service until such time as the payments are brought current. You agree to pay all reasonable costs (including attorney's fees), if any, incurred by GUMPTION in collecting overdue fees from You, and pay a late charge on any overdue fees at a rate equal to the lesser of 1.5 % per month (prorated for partial periods) or the maximum rate allowed under applicable law. You also agree to pay all foreign, federal, provincial, state and local taxes applicable to your access, use or receipt of the Service.
Fees for use of the Service of GUMPTION are charged on a monthly basis. In addition to providing complete Registration Data in order to gain access to the Service or the services of GUMPTION, You will also be charged for the first month's use of the Service at the time of issuance of your access credentials to the Service by GUMPTION. You agree to this monthly advance billing method and acknowledge your understanding that each month you will be billed in advance for that month's access or usage of the Service.
If for any reason the credit card or other payment credentials or method which You have provided is declined or payment for monthly use of the Service is otherwise not received, you acknowledge and understand that GUMPTION reserves the right to, at any point following such failure of payment, terminate this agreement or otherwise restrict your access to the Service pending the receipt of payment which might be outstanding along with any late payment fees.
The different pricing plans offered by GUMPTION for the Service are priced based upon disk usage on GUMPTION's servers. You acknowledge and agree that if at any point during a particular month, the server space which is used by your Content on GUMPTION's servers exceeds the allowed quota with respect to the particular pricing plan in which you are presently enrolled, that GUMPTION is entitled to upgrade your subscription to the Service to an appropriate level based upon the disk usage of your Content and that upgrade will continue from that point forward in the absence of a specific change back down to your service which might be instigated by you. Furthermore you acknowledge and agree that upon such a change to the pricing plan or subscription to the Service based upon your exceeding your allowed disk quota on GUMPTION servers, you will be charged on a pro rata basis for the remainder of the present month by GUMPTION for usage of the Service at the price or pricing level associated with the pricing plan to which GUMPTION has in their discretion upgraded you, and from that point forward your monthly payment in advance of Fees with respect to the use of the Service will be at the new level associated with the new pricing plan or subscription level to which you have been changed based upon your disk usage.
GUMPTION keeps disk logs which indicate the amount of disk space used on their servers by their customers. The disk logs or information kept and maintained by GUMPTION are presumed to be accurate and will be the statistics upon which any changes to pricing plans or subscription levels based on disk usage will be based, and You acknowledge and accept the accuracy of that information as maintained by GUMPTION for this purpose.
COPYRIGHT POLICY, REPRESENTATION AND INDEMNITY
You represent and warrant that you have all right, title and interest in and to all copyrights in the photographs or other materials ("Content") you submit to and/or use on the Service, or the express permission to use the content for all purposes related to the Service. You agree to indemnify and hold harmless GUMPTION and its affiliates (including our suppliers and fulfillers) from and against any and all losses, damages, costs or expenses, including reasonable attorney's fees, arising out of Your breach of the foregoing representation and warranty or arising out of any claim by a third party that the Content (or use thereof) constitutes an infringement or other violation of such third party's copyright, intellectual property right or other rights. Your obligation to indemnify and hold GUMPTION harmless shall survive any expiration or termination of this Agreement.
USE OF SERVICE, AND RESTRICIONS ON USE
You acknowledge that your rights to use the Services are personal to You and/or the organization You are authorized to represent, as defined in your Registration Data, and that You will only use the Services for their intended purpose. You agree not to resell the Services, or make Your account available to third parties, without the express written consent of GUMPTION, and You agree to be fully liable for the use of Your account including any unauthorized use of your account by a third party. You are solely responsible for the accuracy and integrity of Your submissions, files and data.
You will not use, upload, post, submit, reproduce or distribute any Content that infringes or violates the copyright, intellectual or other property right, rights of publicity, privacy, trademarks, or trade secrets of any party.
You will use the Services and the Site only in accordance with these Terms of Service and will not use them to: (a) submit, upload, post, email or otherwise transmit any material to the Service that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, objectionable or libelous, or promotes such activity that could give rise to any civil or criminal liability under applicable law; (b) that (or the transmission of which) infringes any patent, trademark, trade secret, copyright, or other rights or proprietary rights of any party, violates any contractual or fiduciary relationships (such as inside, proprietary or confidential information); (c) that is harmful to minors; or (d) that contains software viruses or any other computer code, files, or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or circumvent any “copy-protected” devices, any other harmful or disruptive programs, cracks, hacks, or other such utilities or piracy related devices, programs or files.
GUMPTION has no obligation to monitor the content submitted to or used on the Service. However, we (and our suppliers and fulfillers) reserve the right at all times to review the content, to disclose the content as necessary to satisfy any laws, regulations or government requests and to report any potential violations of law to law enforcement authorities, to refuse to post or transmit content, to remove content, and to refuse to perform any part of our Services, that are, in our sole judgment and discretion (or in the sole judgment and discretion of our suppliers or fulfillers) objectionable or in violation of this Agreement.
PROPRIETARY RIGHTS AND CONFIDENTIAL INFORMATION
The Services, the GUMPTION Website and all content, and all trademarks, including but not limited to all material distributed or presented to You through the Services of GUMPTION or its Third Party Providers, and all rights and intellectual property rights therein, are the sole property of GUMPTION, or its Third Party Providers, and are protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Any comments, suggestions or ideas or other information submitted to GUMPTION through this Website or in any other manner whatsoever, will be the property of GUMPTION and GUMPTION will have all rights therein without any obligation to compensate You. You agree to respect all proprietary rights of GUMPTION and its Third Party Providers in and to the Content, the Services, the website, any products or other services obtained therefrom.
You acknowledge that by your use of the Service you acquire no rights whatsoever in any of the trademarks of GUMPTION, including the PIXELSHAPERS trademarks or any other trademarks of GUMPTION or their related or Third Party Providers as might be indicated to you either in correspondence from GUMPTION from time to time or as might be marked or indicated on the Service or the Web site. Any use rights in any of these trademarks which might be created by your use of the Service all in order to the benefit of GUMPTION or their related or Third Party Provider as the case may be. Furthermore you acknowledge the goodwill of GUMPTION in the PIXELSHAPERS trademarks and any other trademarks indicated or marked in the Service or the Web site.
You agree to hold GUMPTION's Confidential Information in strict confidence and not to disclose such Confidential Information to third parties. Confidential Information shall mean all GUMPTION related information that is disclosed to you through the Service or other contacts or sources that is not generally known in the GUMPTION’s trade or industry and shall include, without limitation, (i) concepts and ideas relating to current, future or proposed products and services of GUMPTION; (ii) trade secrets, drawings, know-how, inventions, software programs, and software source documents, (iii) information regarding plans for research, development, new service offerings or products, marketing and selling, business plans, business forecasts, business processes and models, budgets and unpublished financial statements, licenses and distribution agreements, prices and costs, suppliers and customers; (iv) existence of any business discussions, negotiations or agreements between the parties; and (v) any information regarding the skills and compensation of employees, contractors or other agents of GUMPTION or its subsidiaries or affiliates.
LICENSE AND OWNERSHIP OF WORK PRODUCT
GUMPTION is committed to protecting photographers’ copyright interests and expects You to do the same. You are required to hold the right to, or obtain permission to, use an image before the image is uploaded or otherwise submitted to the GUMPTION Service. GUMPTION may, at its sole discretion and in appropriate circumstances, terminate the accounts of users or prevent access to the Services and/or website by users who infringe the intellectual property rights of others.
GUMPTION gains no ownership rights or interest in the Content submitted by you to the Service. You agree that in order to receive the benefits of the Service you grant GUMPTION a limited, royalty free and non-exclusive license to use, adapt, transmit, store, copy, publish and display the Content solely in connection with the Service provided to you.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE GUMPTION SERVICES, AND ANY ASSOCIATED SOFTWARE IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. GUMPTION EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. GUMPTION MAKES NO WARRANTY OR REPRESENTATION THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) ANY ERRORS IN THE SOFTWARE OR SERVICE WILL BE CORRECTED. USE OF THE SERVICES AND THE SITE ARE AT YOUR SOLE RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO THE SUBSCRIBING ORGANIZATION, THE SITE, AND ANY LINKED SITES RESULTING FROM THE USE OF THE SERVICES OR WEBSITE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL GUMPTION BE LIABLE TO YOU OR ANYBODY ELSE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS, GOODWILL, USE, DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER INTANGIBLE LOSSES) INCLUDING BUT NOT LIMITED TO CLAIMS ARISING OUT OF, OR RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES, THE SITE OR ASSOCIATED SOFTWARE, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEAGL THEORY, EVEN IF GUMPTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. IN ANY CASE, GUMPTION’S MAXIMUM CUMULATIVE LIABILITY ARISING OUT OF ANY KIND OF LEGAL CLAIM (WHETHER IN CONTRACT, TORT, OR OTHERWISE) IN ANY WAY CONNECTED WITH THE SERVICE WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES.
GUMPTION shall not be liable for any loss resulting from a cause over which GUMPTION does not have direct control, including, but not limited to failure of electronic or mechanical equipment or communication lines; telephone or other interconnect problems, bugs, errors, configuration problems, or incompatibility of computer hardware or software, failure or unavailability of internet access; problems with internet service providers or other equipment or services relating to your computer, problems with intermediate computer or communications networks or facilities, problems with data transmission facilities or your telephone or telephone service; or unauthorized access, theft, operator errors, severe weather, earthquakes or labor disputes. GUMPTION is not responsible for any damage to your computer, software, modem, telephone or other property resulting from your use of the Service.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you while the remaining provision and other provisions of these terms of service remain in full force and effect.
INDEMNITY
You agree to defend, indemnify and hold GUMPTION harmless from and against any and all claims, losses, liability costs and expenses (including but not limited to attorney's fees) arising from your violation of the TERMS OF SERVICE, provincial, state, or federal laws or regulations, or any third party's rights, including, but not limited to infringement of any copyright, violation of any proprietary right and invasion of privacy rights. This obligation will survive the termination of Service.
MODIFICATIONS TO OR DISCONTINUATION OF SERVICE
GUMPTION reserves the right at any time to and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that GUMPTION shall not be liable to you or to any third party for any modification, suspension, interruption, or discontinuance of the Service.
TERMINATION
You agree that GUMPTION, in its sole discretion, may terminate, cancel, suspend, limit, discontinue, and/or deactivate (temporarily or permanently) all or any part of the Services, registration code, any password, Site Name, registration, any part or all of the Site, the Services and/or the Site (all of the foregoing rights and actions to "Terminate" or a "Termination"), all at any time, including without limitation if (a) GUMPTION believes that You have violated or are threatening to violate these Terms of Service or other policy of GUMPTION, its Third Party Providers or applicable law, have misused or are threatening to misuse the Services, or have conducted or are threatening to conduct any fraudulent, abusive, or illegal activity, (b) GUMPTION believes that You have accessed or are attempting to access any part of the Services or Content without authorization, or the Site, or Registration, Site or Personal Information of any other subscriber to the Services, (c) GUMPTION discontinues the Services or any part thereof for any reason.
GUMPTION reserves the right to investigate the validity of any complaint presented to it which alleges that the Services or Site has been used to conduct fraudulent, abusive or illegal activity, or has been used in any way which violates these Terms. GUMPTION will not, however, provide any such information to any third party unless required by law or court order.
A Termination may be made with or without notice and will be effective immediately. In the event of Termination, GUMPTION may remove and/or permanently delete Your Information, including but not limited to submissions made by You, and all backup copies thereof. GUMPTION may (but will not be required to) remove from its servers and/or permanently delete all such Information and/or all backup copies thereof, without further notice and without any liability of GUMPTION to You or any third party. Notwithstanding anything in these Terms of Service to the contrary, if GUMPTION reasonably believes that You have violated or are threatening to violate applicable law or have conducted or are threatening to conduct any fraudulent, abusive, or illegal activity, GUMPTION may, without any notice, refer You to appropriate law enforcement agencies, and/or immediately remove and/or permanently delete the Information or submissions provided to GUMPTION.
THIRD PARTY LINKS
GUMPTION may provide, or third parties may provide, links to other World Wide Web sites or resources. Because GUMPTION has no control over such sites and resources, You acknowledge and agree that GUMPTION is not responsible for the availability of such external sites or resources, and does not endorse and is not liable for any content, advertising, products, services or other materials on or available from such sites or resources. You further acknowledge that GUMPTION shall not be responsible or liable, directly or indirectly, for any damages or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such site or resource. It is Your responsibility to become familiar with each site’s privacy and other policies and terms of service, and to contact that site’s Webmaster or site administrator with any concerns. You acknowledge sole responsibility for and assume all risk arising from your use of any such sites.
THIRD PARTY PRODUCTS AND SERVICES
Your correspondence or business dealings with, or participation in promotions of third parties, including advertisers, found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party or advertiser. You agree that GUMPTION shall not be 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 parties or advertisers on the Service.
MISCELLANEOUS
You agree that GUMPTION can use your name as a customer reference in their marketing materials, at their sole discretion. Your agreement in this regard extends only to the use of your name, and GUMPTION will not use any of your Content or other material that you might have posted to the Web site or the Service without your specific authorization.
You may not assign or delegate your obligations under this Agreement either in whole or in part, without the prior written consent of GUMPTION.
This Agreement will be governed by and construed in accordance wit the laws of Saskatchewan, Canada. The parties hereby submit to the jurisdiction of, and waive any objections against provincial and federal courts in Saskatchewan in any litigation arising out of this Agreement. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the other provisions of the Agreement which will remain in full force and effect.
This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. GUMPTION shall not be bound by terms additional to or different from those in this Agreement that appear in Your acknowledgements, purchase orders, quotations, prior understandings, or in any other communications between the parties, unless the terms are expressly agreed to by amendment to this Agreement and are executed by You and GUMPTION
Except for Your obligation to pay for the Services rendered, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labour disputes, actions of any government agency, shortage of materials, acts of terrorism, or the stability or availability of the Internet or a portion thereof.
The waiver of any one breach, default or right granted under this Agreement will not constitute the waiver of any subsequent breach, default or right granted. Any provision of this Agreement held to be illegal or unenforceable will be deemed amended to conform to applicable laws or regulations, or if it cannot be so amended without materially altering the intention of the parties, it will be stricken and the remainder of this Agreement will continue in full force and effect.
Notices to you from GUMPTION may be made by email, regular mail, or by postings on your home page within the Service. GUMPTION may also provide notices of changes to the Terms of Service or other matters by displaying notices or links to notices to you on the Service.
GUMPTION may modify these Terms of Service at any time. Modifications will be posted on its website. You agree that You will confirm Your acceptance of the modifications by not closing Your account and/or by continuing to use the Services and/or website.
You will be solely responsible for the development, operation and maintenance of your online store and products and all contents and materials appearing online or on your products, including without limitation (a) the accuracy and appropriateness of content and materials appearing within the store or related to your products, (b) ensuring that the content and materials appearing within the store or related to your products do not violate or infringe upon the rights of any third party, and (c) ensuring that the content and materials appearing within the store or related to your products are not libelous or otherwise illegal. You will be solely responsible for the final calculation and application of shipping and sales tax. You will also be solely responsible for accepting, processing, and filling any customer orders, and for handling any customer inquiries or complaints arising there from. You are also responsible for the security of any customer credit card numbers and related customer information you may access as a result of conducting electronic commerce transactions through your website. You will keep all such information confidential and will use the same degree of care and security as you use with your confidential information.
The Service is not designed or intended to be used as a disaster recovery facility or as an emergency data storage facility. Although GUMPTION takes reasonable precautions to preserve and protect the material you may upload to the Service, you should not rely on the Service as your only source for the material you provide. You should backup copies of any digital information you have uploaded or authorized others to upload to the Service.
Cancellation Policy
You may cancel the GUMPTION services by completing the “request for cancellation” submission form. Requests must be received no later than 15 calendar days prior to your next billing date. Upon verification of your request, your account will be terminated.
You agree to be bound by, and agree to have read and understood the Privacy Policy of GUMPTION which is posted on and available through the Website.
