Terms of
Service
Privacy
Policy

Last modified June 22, 2015

You’re reading PHHHOTO’s Terms of Service. This is the contract between you and PHHHOTO when you use the PHHHOTO services and products described below. Read this carefully before you use PHHHOTO. If you have any questions or suggestions, please email us at: support@phhhoto.com.

1. Accepting the Terms of Service

Please read these Terms of Service and our Privacy Policy (collectively, the “Agreement”) carefully before using the PHHHOTO website (at phhhoto.com or other domains controlled by us) (the “Site”) or the PHHHOTO mobile app (the “App” and together with the Site, the “Services”), each as provided by PHHHOTO Inc. PHHHOTO Inc., “PHHHOTO,” “we,” or “us”). By using or accessing the Services, you (“Subscriber” or “you”) agree to become bound by all the terms and conditions of this Agreement. If you do not agree to all the terms and conditions of this Agreement, you shouldn’t and aren’t permitted to use the Services.

2. Modifications to this Agreement

PHHHOTO reserves the right, in its sole discretion, to modify this Agreement at any time by posting a revised Agreement through the Services with an updated date. For significant changes, we will also attempt to provide you separate notice (for instance via e-mail, banner or in-app notification) where practicable. You are responsible for reviewing and becoming familiar with any modifications to this Agreement. Modifications are effective when posted, and your use of the Services following any such posted modification and notice of same constitutes your acceptance of the terms and conditions of this Agreement as modified. Note that, if you have prepaid for any Paid Services (as defined below) prior to a modification of this Agreement, your use of such prepaid Paid Services is governed by the version of this Agreement in effect at the time PHHHOTO received your prepayment.

3. Use of the Services

a. Eligibility

No individual under the age of thirteen (13) may use the Services or provide any information to PHHHOTO or otherwise through the Services. You otherwise may only use the Services if you can form a binding contract with PHHHOTO and are not legally prohibited from using the Services.

b. Service Changes and Limitations

The Services change frequently, and their form and functionality may change without notice or liability to you. PHHHOTO retains the right to create limits on and related to use of the Services in its sole discretion at any time with or without notice. PHHHOTO may also impose limits on certain aspects of the Services or aspects of those Services or restrict your access to parts or all of the Services without notice or liability. PHHHOTO may change, suspend, or discontinue any or all of the Services at any time, including the availability of any product, feature, database, or Content (as defined below). PHHHOTO may also suspend Accounts (as defined below) at any time, in its sole discretion.

c. Limitations on Automated Use

You may not do any of the following while accessing or using the Services: (a) access, tamper with, or use non-public areas of the Services, or the computer or delivery systems of PHHHOTO and/or its service providers; (b) probe, scan, or test any system or network (particularly for vulnerabilities), or otherwise attempt to breach or circumvent any security or authentication measures; (c) access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by PHHHOTO (and only pursuant to those terms and conditions), unless you have been specifically allowed to do so in a separate agreement with PHHHOTO, or unless permitted by PHHHOTO’s robots.txt file or other robot exclusion mechanisms; (d) scrape the Services, and particularly scrape Content (as defined below) from the Services, without PHHHOTO’s express prior written consent; (e) use the Services to send altered, deceptive, or false source-identifying information, including without limitation by forging TCP-IP packet headers or e-mail headers; or (f) interfere with, or disrupt (or attempt to do so), the access of any Subscriber, host or network, including, without limitation, by sending a virus to, spamming, or overloading the Services, or by scripted use of the Services in such a manner as to interfere with or create an undue burden on the Services.

d. Registration, URLs, Security

As a condition to using the Services, you may be required to create an account (an “Account”) and select a password and PHHHOTO username, which will serve as a default URL of the form phhhoto.com/username (a “PHHHOTO URL”). You agree that you shall not select or use as a PHHHOTO URL the name of another person or entity with the intent to impersonate that person or entity or with the intent to otherwise cause confusion as to the origin or provenance of your Account. PHHHOTO reserves the right to refuse registration of, cancel, or modify a PHHHOTO URL in its sole discretion. If you establish an Account with, or connect your Account to, a third-party identity service (e.g., Facebook Connect, or a similar service we may from time to time support), you will be deemed to have given PHHHOTO permission to access and use your information from that service as permitted by its terms. For more information on the types of information PHHHOTO may collect from these third-party services, please see our Privacy Policy. You are also responsible for maintaining the confidentiality and security of your Account, and you will notify PHHHOTO immediately of any actual or suspected loss, theft, or unauthorized use of your Account.

4. Privacy

Any information you provide to PHHHOTO is subject to PHHHOTO’s Privacy Policy, which governs our collection and use of your information. You understand that through your use of the Services you consent to the collection and use (as set forth in the Privacy Policy) of this information.

5. Content and Subscriber Content

a. Definitions

For purposes of this Agreement: (1) the term “Content” means a creative expression and includes, without limitation, video, audio, still or moving photographs, images, illustrations, animations, logos, tools, written posts, replies and comments, information, data, text, software, scripts, executable files, and graphics, any of which may be generated, provided, or otherwise made accessible on or through the Services; (2) the term “Subscriber Content” is all Content that is posted or otherwise provided or transferred to the Services by a Subscriber (including, without limitation, by you); and Content also includes, without limitation, all Subscriber Content.

b. Ownership

Subscribers retain ownership of all intellectual property rights in their Subscriber Content. Other than the licenses granted in these Terms, you retain ownership of any intellectual property you post to PHHHOTO. Other than Subscriber Content, we own or license all right, title, and interest in and to (a) the Services, including all software, text, media, and other Content; and (b) the Content, including our trademarks, logos, and brand elements (“Marks”). The Services, Content, and Marks are all protected under U.S. and international laws.

c. Subscriber Content License to PHHHOTO

When you transfer Subscriber Content to PHHHOTO through the Services, including by using the App to take a moving photograph, you give PHHHOTO a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable, transferable right and license to use, host, store, cache, reproduce, publish, display (publicly or otherwise), perform (publicly or otherwise), distribute, transmit, modify, adapt (including, without limitation, in order to conform it to the requirements of any networks, devices, services, or media through which the Services are available), and create derivative works of (including by allowing other Subscribers to copy and modify such Subscriber Content, and to reproduce the same Subscriber Content or modifications thereof on another PHHHOTO profile) such Subscriber Content, in each case for the purpose of promoting the Services, operating the Services, improving the Services, allowing PHHHOTO to develop new Services, and for PHHHOTO’s other good-faith business purposes. You agree that this license includes the right for PHHHOTO to make all publicly-posted Content available to third parties selected by PHHHOTO, so that those third parties can distribute and/or analyze such Content on other media and services. This license continues even if you stop using the Services, primarily because of the social nature of Content shared through the Services — when you post something publicly, others may choose to comment on it, making your Content part of a social conversation that cannot later be erased without retroactively censoring the speech of others. You agree that you will respect the intellectual property rights of others, and represent and warrant to us that you own or otherwise have all of the necessary rights to grant us this license for all Subscriber Content you submit to the Services and your Subscriber Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.

By using the Service to take still or moving photographs, you grant to PHHHOTO the absolute, perpetual and worldwide right and permission to record and make use of your picture, likeness, image, and any other visible aspect of your identity in any manner or media and for any purpose whatsoever, including promotion of the Services and PHHHOTO. You hereby waive, discharge and release PHHHOTO from any and all rights, liabilities, claims and causes of action whatsoever which you may now or hereafter be entitled to assert against PHHHOTO in connection therewith.

d. Content License to You

As a Subscriber of the Services, PHHHOTO grants you a worldwide, non-exclusive, non-sublicensable, and non-transferable license to download, store, view, display, perform, redistribute, and create derivative works of Content made available on the Services, solely in connection with your use of, and in accordance with the functionality and restrictions of, the Services (including, without limitation, Paid Services, as defined below).

6. Feedback

PHHHOTO welcomes and appreciates feedback and suggestions about your experience using the Services and ways to improve them. You understand that we might not respond to or implement feedback or suggestions, but if we do, you understand and agree that PHHHOTO may use all or any portion thereof in its sole discretion without notification or compensation to you. You hereby grant us a nonexclusive, worldwide, perpetual, irrevocable, royalty-free license to use, modify and disclose any feedback you submit to us for any purpose. You may provide us with feedback using the contact information below.

7. Compliance with Community Guidelines and Acceptable Use

You agree that you won’t post Subscriber Content that violates, or otherwise use your Account in ways that violate, PHHHOTO’s Community Guidelines. Without limiting the foregoing, you represent and warrant to us that neither the Subscriber Content you create or upload to the Services nor your use of the Services violates any applicable law or regulation. Further, you represent and warrant that you will only use the Services for your own personal or internal business purposes and not for the purpose of commercializing or monetizing the Services, without the express written consent of PHHHOTO.

8. Termination and Deletion

On termination of your Account or upon your deletion of particular pieces of Subscriber Content from the Services, PHHHOTO shall make reasonable efforts to make such Subscriber Content inaccessible; however, you acknowledge and agree that: (a) caching of, copies of, or references to the Subscriber Content may not be immediately removed; (b) such removed Subscriber Content may persist in backups (not available to others); and (c) such removed Subscriber Content may be available (and stored on our servers) through the accounts of other Subscribers.

9. Social Invites

The Services include a feature through which you are able to send invitations to the Services to your contacts. These invitations can be sent by SMS message. You can only send one invitation at a time and you can only send one invitation to each person. Any one invitee can only receive three invites, so if they have already been invited by three other friends, your invite will not be delivered. If you no longer want to receive invite SMS messages, please reply to the last invite message with "STOP". Data and message rates may apply. Please contact your provider for details about your plan's specific rates.

By sending an invitation to a mobile number, you promise and agree that you know the person associated with that number and that you have their permission to send the invitation and that you will not use the social invite feature to harass anyone.

10. Paid Services

Some of the Services may require payment of fees (the “Paid Services”). You shall pay all applicable fees, as described in the applicable Services, in connection with such Services, and any related taxes or additional charges. Paid Services are limited licenses for you to use particular for-pay aspects of the Services. Usage of terms like sell, sale, buy, purchase, or similar terms all refer to your acquisition of a license to use Paid Services, and do not represent any transfer of any right, title, or ownership interest of any kind. You may not relicense, resell, transfer, or exchange Paid Services within or outside of the Services, except as expressly allowed by the rules of the Services. PHHHOTO may, in its sole discretion, modify the functionality of, or eliminate, Paid Services, or the terms and conditions under which Paid Services are provided. Purchases of Paid Services are final and non-refundable (particularly those Paid Services that may be used immediately, such as Promotions, as defined below), except at PHHHOTO’s sole discretion and in accordance with the rules governing each such Paid Service. Termination of your Account or your rights under this Agreement may result in forfeiture of existing Paid Services. PHHHOTO may change its prices for Paid Services at any time. To the extent applicable, PHHHOTO will provide you reasonable notice of any such pricing changes by posting the new prices on or through the applicable Paid Service and/or by sending you a text message or push notification. If you do not wish to pay the new prices, you may choose not to purchase, or to cancel, the applicable Paid Service prior to the change going into effect.

11. Warranty Disclaimer; Services Available on an “AS-IS” Basis

Your access to and use of the Services or any Content is at your own risk. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, TO THE FULL EXTENT PERMITTED BY LAW, PHHHOTO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PHHHOTO makes no representations or warranties of any kind with respect to the Services, including any representation or warranty that the use of the Services will (a) be timely, uninterrupted or error-free or operate in combination with any other hardware, software, system, service or data, (b) meet your requirements or expectations, (c) be free from errors or that defects will be corrected, or (d) be free of viruses or other harmful components. PHHHOTO also makes no representations or warranties of any kind with respect to Content; Subscriber Content, in particular, is provided by and is solely the responsibility of, the Subscribers providing that Content. No advice or information, whether oral or written, obtained from PHHHOTO or through the Services, will create any warranty not expressly made herein.

12. Release From Liability

You release, to the fullest extent permitted by law, PHHHOTO, its affiliates, and its and their respective directors, officers, shareholders, employees, representatives, consultants, agents, suppliers, and/or distributors from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any of the following:

If the laws of California apply to you, you hereby irrevocably waive California Civil Code § 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”

13. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PHHHOTO, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, AGENTS, SUPPLIERS, AND/OR DISTRIBUTORS SHALL NOT BE LIABLE FOR: (A) ANY INDIRECT, INCIDENTAL, EXEMPLARY PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (B) LOSS OF: PROFITS, REVENUE, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES; (C) DAMAGES RELATING TO YOUR ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES; (D) DAMAGES RELATING TO ANY CONDUCT OR CONTENT OF ANY THIRD PARTY OR SUBSCRIBER USING THE SERVICES, INCLUDING WITHOUT LIMITATION, DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OR CONTENT; AND/OR (E) DAMAGES IN ANY MANNER RELATING TO ANY CONTENT. THIS LIMITATION APPLIES TO ALL CLAIMS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, WHETHER OR NOT PHHHOTO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND FURTHER WHERE A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF PHHHOTO AND ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, AGENTS, SUPPLIERS, AND/OR DISTRIBUTORS, FOR ANY CLAIM UNDER THIS AGREEMENT, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU PAID US TO USE THE APPLICABLE SERVICE(S).

14. Exclusions to Warranties and Limitation of Liability

Some jurisdictions may not allow the exclusion of certain warranties or the exclusion/limitation of liability as set forth above, so the limitations above may not apply to you.

15. Termination

Either party may terminate this Agreement at any time by notifying the other party. PHHHOTO may also terminate or suspend your access to or ability to use any and all Services immediately, without prior notice or liability, for any reason or no reason, including but not limited to if you breach any of the terms or conditions of this Agreement. In particular, PHHHOTO may immediately terminate or suspend Accounts that have been flagged for repeat copyright infringement. Upon termination of your access to or ability to use a Service, including but not limited to suspension of your Account on a Service, your right to use or access that Service and any Content will immediately cease. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, our license to Subscriber Content you have provided, warranty disclaimers, and limitations of liability. Termination of your access to and use of the Services shall not relieve you of any obligations arising or accruing prior to such termination or limit any liability which you otherwise may have to PHHHOTO or any third party.

16. Legal Disputes

You and PHHHOTO agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or the Services in accordance with Section 16 or as you and PHHHOTO otherwise agree in writing. Before resorting to litigation, we strongly encourage you to contact us directly to seek a resolution.

17. Law and Forum for Legal Disputes

This Agreement shall be governed in all respects by the laws of the State of New York as they apply to agreements entered into and to be performed entirely within New York between New York residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against PHHHOTO must be resolved exclusively by a state or federal court located in New York County, New York, except as otherwise agreed by the parties. We each hereby irrevocably submit to the personal jurisdiction of the courts located within New York County, New York for the purpose of litigating all such claims or disputes, and irrevocably waive any claims we may otherwise have based on personal jurisdiction, inconvenient forum, or similar bases.

18. Miscellaneous

This Agreement, as modified from time to time, constitutes the entire agreement between you and PHHHOTO with respect to the subject matter hereof. This Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof and constitutes the entire and exclusive agreement between the parties. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sublicensable by you except with PHHHOTO’s prior written consent. PHHHOTO may assign this Agreement in whole or in part at any time without your consent. 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 PHHHOTO in any respect whatsoever. Any notice to you that is required or permitted by this Agreement may be given via email to the email address you provide when you register for an Account, or any other email address that our records indicate is associated with your Account. Any notice to PHHHOTO that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when delivered in person by nationally recognized overnight courier or mailed by first class, registered or certified mail, postage prepaid, to PHHHOTO INC., 1166 MANHATTAN AVE., SUITE 203, BROOKLYN, NY 11222, Attn: Legal Department.

19. Special Provisions for Subscribers Located Outside of the United States

PHHHOTO provides global products and services and enables a global community for individuals to share and follow the things they love. PHHHOTO’s operations are, however, located in the United States, and PHHHOTO’s policies and procedures are based on United States law. As such, the following provisions apply specifically to Subscribers located outside of the United States: (1) you consent to the transfer, storage, and processing of your information, including but not limited to Subscriber Content and any personal information, to and in the United States and/or other countries; and (2) you represent and warrant that (a) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (b) you are not listed on any U.S. government list of prohibited or restricted parties.

20. DMCA Copyright Policy

PHHHOTO has adopted the following policy toward copyright infringement on the Services in accordance with the Digital Millennium Copyright Act (the “DMCA”). The address of PHHHOTO’s Designated Agent for copyright takedown notices (“Designated Agent”) is listed below. For clarity, only copyright infringement notices should go to our Designated Agent.

PHHHOTO Inc.1166 Manhattan Ave.
Brooklyn, NY 11222
Attn: Omar Elsayed
admin@phhhoto.com
Phone: 347-781-4659
Fax: 347-823-6849

a. Reporting Instances of Copyright Infringement

If you believe that Content residing or accessible on or through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent at the address below:

After removing material pursuant to a valid DMCA notice, PHHHOTO will immediately notify the Subscriber responsible for the allegedly infringing material that it has removed or disabled access to the material. PHHHOTO reserves the right, in its sole discretion, to immediately terminate the account of any Subscriber who is the subject of repeated DMCA notifications.

b. Submitting a DMCA Counter-Notification

If you believe you are the wrongful subject of a DMCA notification, you may file a counter-notification with PHHHOTO by providing the following information to the Designated Agent at the address below:

Upon receipt of a valid counter-notification, PHHHOTO will forward it to the Notifying Party who submitted the original DMCA notification. The original Notifying Party (or the copyright holder he or she represents) will then have ten (10) days to notify us that he or she has filed legal action relating to the allegedly infringing material. If PHHHOTO does not receive any such notification within ten (10) days, we may restore the material to the Services.

21. Where to Direct Questions or Concerns

If you have any questions or concerns regarding privacy using the Services, please contact us at:

PHHHOTO INC.
1166 MANHATTAN AVE.
SUITE 203
BROOKLYN, NY 11222
support@phhhoto.com