Terms of Service
Effective Date: November 11, 2024
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BECAUSE THEY CONSTITUTE A BINDING CONTRACT BETWEEN YOU AND LATITUDE 33 MOTION PICTURE SERVICES OF GEORGIA, LLC WHICH AFFECTS YOUR LEGAL RIGHTS. PLEASE NOTE THAT THESE TERMS OF SERVICE CONTAIN A WAIVER OF YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE LAWSUIT. FOR MORE INFORMATION, PLEASE SEE THE “DISPUTE RESOLUTION: MANDATORY CLASS AND COLLECTIVE ACTION WAIVER” SECTION.
1. Introduction.
1.1. Agreement. Latitude 33 Motion Picture Services of Georgia, LLC, doing business as Focus on Camera (“Focus on Camera,” “Company,” “us,” or “we”) recommends that you read the following terms and conditions carefully. By accessing or using the Focus on Camera website located at www.focusoncamera.com, including any programs, interfaces, features, services, software applications, and any related mobile applications owned or operated by Focus on Camera (together, the “Service”), however accessed or used, you agree to be bound by these terms (the “Terms of Service” or the “Agreement”). By clicking on the “Start Elevating Today” button, the “Sign Up Now!” button, logging in to the Service; or otherwise making use of the Service, you also agree to be bound by this Agreement, constituting a legally binding contract between Focus on Camera and you concerning your use of the Service. We encourage you to print this Agreement or save it
to your computer for reference. As used in these Terms of Service and unless separately identified as applicable to either an individual or entity, “you” and “your” refer to both you individually and the entity on behalf of which you are entering into these Terms of Service.
1.2. User Types. This Agreement may apply to you individually (“Personal User”), the business, entity, or other organization you represent (“Entity User”), or both. Either a Personal User or an Entity User may also be a Client, if such individual or entity registers a Group, or a Group User, if such individual is receiving access to the Service as part of a Group. If you are a Personal User receiving access to the Service through a Group, you acknowledge that your rights herein may be subject to the Group remaining authorized to access and use the Service. If you are using the Service or otherwise entering into this Agreement on behalf of a business, entity, or other organization (i.e., an Entity User), you hereby represent and warrant that you have the authority to enter into this Agreement on behalf of the Entity User. Notwithstanding the foregoing, if you are an Entity User that has a separate agreement with us, such separate agreement shall govern in the event of a conflict between this Agreement and the other agreement. However, if an Entity User has a separate agreement with us for certain Focus on Camera products, programs, arrangements, features, or services but not other Focus on Camera products, features, or services, this Agreement shall govern such other Focus on Camera products and services that are not already governed by the Entity User’s existing separate agreement with Focus on Camera. Additionally, if you are a natural person using the Service on behalf of a business, entity, or other organization or as a user under an Entity User’s separate agreement with us, you (as a Personal User) are nevertheless individually bound by this Agreement despite your company’s existing separate agreement with us. As used in this Agreement and unless separately identified as applicable to either a Personal User or Entity User only, “you” and “your” refer to both you individually (Personal User) and, to the extent this Agreement applies, the company on behalf of which you are entering into this Agreement (i.e., Entity User).
1.3. Separate Privacy Policy. By using the Service, you represent and warrant that you have read and understood, and agree to be bound by, this Agreement and Focus on Camera’s Privacy Policy (the “Privacy Policy”), which is incorporated into this Agreement by reference. The Privacy Policy is available at Focusoncamera.com/about/privacy.
1.3.1. Monitoring. You acknowledge that Focus on Camera reserves the right to, and may from time to time, monitor any and all information (including Personal Information as defined in the Privacy Policy) transmitted or received through the Service for the purposes of providing you with the Service, improving the Service, and marketing the Service to you as provided in Focus on Camera’s Privacy Policy.
1.5. No Permission Without Agreement. If you do not understand this Agreement, or do not agree to be bound by it or by the Privacy Policy, you may not access or use the Service, and you must immediately stop accessing or using the Service.
2. Privacy Policy.
By using the Service, you consent to the collection and use of certain information about you, as specified in the Privacy Policy. Please visit the Privacy Policy for
changes.
3. Changes to Agreement and Privacy Policy.
Internet technology and the applicable laws, rules, and regulations change frequently. Focus on Camera reserves the right to change this Agreement or its Privacy Policy at any time, and your continued use of the Service after we make such changes is deemed to be acceptance of those changes. It is your responsibility to review this Agreement and the Privacy Policy periodically. If at any time you find this Agreement or the Privacy Policy unacceptable, you must immediately stop accessing the Service.
4. Eligibility.
4.1. By accessing and/or using the Service, including by doing so after accessing this Agreement, you represent and warrant that you: (1) are at least 18 years old or the age of majority in your state or province of residence; (2) are not currently restricted from the Service and are not otherwise prohibited from having an Account (defined in the “User Account” section below) related thereto; (3) will only maintain one Account at any given time; (4) will only provide accurate information to Focus on Camera; (5) have full power and authority to enter into these Terms of Service and doing so will not violate any other agreement to which you are a party; and (6) will not violate any rights of Focus on Camera or a third party. You assume all responsibility for your use of, and access to, the Service, including any unauthorized use and access to the Service through your Account. Accounts are for a single user, company, or other legal entity, as applicable. Any multiple-party use, other than individual use on behalf of a business, entity, or other organization, is prohibited. For example, sharing a login between non-entity individual users is prohibited.
4.2. Entity Use. If you are entering into this Agreement on behalf of an Entity User, you represent and warrant that you are authorized to act and enter into contracts on behalf of that Entity User.
4.3. No Use of Service for the Benefit of a Competitor. By using or accessing the Service, you represent and warrant that you are utilizing the Service for personal enrichment with discretion to gain insight as to filmmaking, with no connection to educational requirements, accreditation, licensure, or certification, and without commercial expectations or contingencies as to your future performance or qualifications related to topics covered by the Service, and not for the benefit of any Competitor of Focus on Camera. For purposes of this section, a “Competitor” is a person or organization engaged or seeking to engage in a similar line of business to any in which Focus on Camera regularly engages.
5. License.
Subject to your compliance with these Terms of Service, as well as any separate agreement you enter into with Company, Company grants Personal User and Group Users a limited, non-exclusive, non-transferable license to access the Service: (a) in the case of Personal Users, for your own personal use only; and (b) for Group Users, for your own personal use and to administer the Group. This license is revocable, and you may not sub-license it. Except for the foregoing limited license, all rights in the Service are reserved by Company. Except as expressly authorized herein, no part of the Service may be reproduced, duplicated, copied, modified, sold, resold, distributed, transmitted, performed, displayed, stored, or exploited for any purpose without the prior express written consent of Company. Without limitation, this Agreement grants you no rights to the intellectual property of Company, any licensor of Company, or any other third party, except as expressly stated in this Agreement. The license granted in this Section is conditioned on your compliance with this Agreement. Your rights under this Section will immediately terminate if, in the sole judgment of Company, you have breached or violated any provision of this Agreement.
6. Software as a Service; Types of Users.
In addition to in-person consultations, classes, and programs, Company provides software with informative content (together, the “SaaS”) as part of the “Service”. The SaaS includes, but is not limited to: virtual classes, individual and group virtual consultation, on-demand information programs, and similar content.
7. No Reliance on Third Party Content.
7.1. Opinions, advice, statements, or other information made available through the Service by third parties are those of their respective authors, and should not necessarily be relied upon. Those authors are solely responsible for their content. Company does not: (i) guarantee the accuracy, completeness, or usefulness of any third-party information accessible on or through the Service; or (ii) adopt, endorse, or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by a third party through the Service. Under no circumstances will Company be responsible for any loss or damage resulting from your reliance on information or other content posted through the Service transmitted to or by any third party. COMPANY DISCLAIMS ANY AND ALL LIABILITY RELATING TO OR IN CONNECTION WITH CONTENT POSTED TO THE SERVICE BY PROFESSIONAL CONTRIBUTORS.
8. ASSUMPTION OF RISK; RELEASE.
YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE SERVICE. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES, AND YOUR HEIRS, VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND, AND INDEMNIFY FOCUS ON CAMERA AND ITS MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, CONSULTANTS, REPRESENTATIVES, SUB-LICENSEES, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “COMPANY PARTIES”) FROM ANY AND ALL CLAIMS, ACTIONS, OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF PRIVACY, LOSS OF DATA, OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, THAT MAY RESULT FROM YOUR ACCESS OR USE OF THE SERVICE, INCLUDING BY THIRD PARTIES ACCESSING OR USING THE SERVICE THROUGH YOUR ACCOUNT.
9. Consent to Receive Electronic Communications from Company and
Feedback.
9.1 By providing your name, email, postal or residential address, and/or phone number when registering for the Service, you expressly consent to receive electronic and other communications from Company, over the short term and periodically over the long term, including email communications. These communications will be about the Service, new product offers, promotions, and other matters. You may opt out of receiving electronic communications at any time by following the unsubscribe instructions contained in each communication, or by sending an email to [email protected]. You agree that these electronic communications satisfy any legal requirements that communications or notices to you be in writing.
9.2. By sending Company or submitting to the Service any ideas, comments, suggestions, questions, information, ideas, concepts, know-how, or techniques, or other material (collectively, “Feedback”), you grant Company an unrestricted, royaltyfree, worldwide, irrevocable license to use, copy, reproduce, display, archive, store, publish, perform, modify, transmit, create derivative works from, and distribute such Feedback (including your name and any other information in connection with Feedback) in any manner, form, media, software, or technology of any kind now existing or developed in the future, including, but not limited to, in connection with Company’s business, and you also agree that Company shall be free to use the Feedback for any purpose and without any obligation, credit, or remuneration to you. You agree that no Feedback submitted by you to Company will violate any personal or proprietary right of any third party anywhere in the world (including, without limitation, copyright, trademark, patent, or trade secret rights). You agree that you shall remain solely liable for the Feedback submitted by you to Company. You also agree that Company is under no obligations of confidentiality, whether express or implied, with respect to any Feedback you send to Company or submit to the Service.
10. Pricing.
10.1. Session Pricing. As discussed in “The Course” section, Focus on Camera’s informative sessions are priced per each Individual User who registers on the Company’s website for access to the program (“Session Pricing”). The Session Pricing includes a fixed cost, as provided in “The Course” section, for access by the Individual User for the duration of the standard two-day sessions. The minimum attendance requirement for confirmation of a Session date is at least five (5) attendees successfully registered for each Session. If this minimum is not met, either a course date shall be combined with another course date to meet that minimum or the course fees shall be refunded in full.
10.2. Personal Pricing. Access to Company’s private sessions, or personal followups with Company’s Instructors, by Individual Users, are priced and charged to each Individual User on an hourly basis (“Personal Pricing”). The hourly rate charged for Personal Pricing is listed and provided in “The Course” section.
10.3. Travel Charges. Services which require Company’s Instructors to travel to you may be subject to additional fees and charges, which will be confirmed and provided to you prior to confirmation of your registration. To receive an prior notice of applicable Travel Changes for specific Services prior to registration, contact [email protected].
10.4. Remote Services. Services requiring extensive travel by Company’s Instructors may require you to enter a separate additional agreement for the remote services (the “Remote Service Agreement”), including additional terms and conditions beyond those contained in this Agreement. Remote Services, as further defined in the Remote Service Agreement, requires travel by Company to a location which is not within a reasonable proximity to the Company’s location and is subject to separate pricing and additional charges provided for in the Remote Service Agreement.
10.5 Discounts and Promotions. Limited time offers and discounts, of varying durations and amounts, may be offered by the Company for promotional purposes to reduce the charges or fees applied for Services (“Discounts and Promotions”). The Discounts and Promotions may be discontinued by Company at any time. Information and details as to any Discounts and Promotions will be listed in “The Course” section of the Company’s website.
10.6. Reserved Rights for Company’s Pricing. Company reserves the right, in its sole discretion, to change the pricing and charges in effect, or to add new fees and charges, by posting such changes or providing notice to you. All fees and charges are nonrefundable, and there are no refunds.
10.6.1. Company’s decision not to exercise any specific right or require performance of any specific obligation under this Agreement shall not affect Company’s later ability to exercise those rights or to require performance at any later time. Company’s waiver of your breach shall not constitute a waiver of any later breach by you, or by any other user of the Service.
11. Third Party Websites.
The Service may include links to the websites of third parties (“Third Party Websites”), some of whom may have established relationships with Company and some of whom may not. Company does not have control over the content and performance of Third Party Websites. Company has not reviewed, and cannot review or control, all of the material, including computer software, or other goods or services, made available on or via Third Party Websites. Accordingly, Company does not represent, warrant, or endorse any Third Party Websites, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through Third Party Websites. COMPANY DISCLAIMS, AND YOU AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM YOUR ACCESS OR USE OF THIRD PARTY WEBSITES.
Company imposes certain restrictions on your use of the Service. Any violation of this Section may subject you to civil and/or criminal liability. Company reserves the right to take preventative or mitigating measures if it believes, in its sole discretion, that you may be engaging in prohibited uses of the Service. Such measures include, but are not limited to: cancelling Services for which you have registered, deny you the ability to register for future Services, or pursuing all available legal recourse. Please note that if Services are cancelled based on Prohibited Uses by you, no full or partial refunds will be given. The following are expressly prohibited:
12.1 harassing or stalking any person, or contacting any person who has requested not to be contacted;
12.2 providing false, misleading, or inaccurate information to Company or to any other person in connection with the Service;
12.3 impersonating, or otherwise misrepresenting affiliation, connection, or association with, any person or entity;
12.4 modifying any advertisement posted through the Service;
12.5 harvesting or otherwise collecting information about users, including email addresses and phone numbers;
12.6 without express written permission from Company, using or attempting to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information or content from the Service for any use, including without limitation use on Third Party Websites;
12.7 accessing content or data not intended for you, or logging into a server or Account that you are not authorized to access;
12.8 attempting to probe, scan, or test the vulnerability of the Service, or any associated system or network, or breaching security or authentication measures without proper authorization;
12.9 interfering or attempting to interfere with the use of the Service by any other user, computer, or network, including (without limitation) by submitting malware or exploiting software vulnerabilities;
12.10 using the Service to send unsolicited email, including without limitation promotions or advertisements for products, features, or services;
12.11 forging, modifying, or falsifying any network packet or protocol header or metadata in any connection with, or transmission to, the Service (for example, SMTP email headers, HTTP headers, or Internet Protocol packet headers);
12.12 while using the Service, using ad-blocking or other content-blocking software, browser extensions, or built-in browser options designed to hide, block, or prevent the proper display of online advertising;
12.13 attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Company Parties (defined in the “Assumption of Risk; Release” section above) in providing the Service, including without limitation any fraudulent effort to modify software or any other technological mechanism for measuring the number of impressions generated by individual content and/or the overall Service to determine and/or audit advertising revenues and payments, if applicable;
12.14 creating additional Accounts to promote your (or another’s) business, or causing others to do so;
12.15 paying anyone for interactions on the Service;
12.16 selling, sublicensing, distributing, displaying, storing, or transferring content and/or other materials available through the Service, including, without limitation, any component of any material offered for sale, license, or distribution to third parties;
12.17 accessing, using, or attempting to access or use the Service to do anything that might harm Focus on Camera or a third party (examples include: (i) using the Service to violate any applicable law, including export controls and sanctions, or Focus on Camera’s or anyone else’s proprietary or legal rights, including intellectual property rights; or (ii) attempting, encouraging, or supporting anyone else’s attempt to circumvent, reverse engineer, decrypt, or otherwise alter or interfere with the Service, or any content of the Service, or otherwise make any unauthorized use of the Service);
12.18 without Focus on Camera’s prior written consent, using robots, spiders, scripts, service, software, or any manual or automatic device, tool, or process designed to data mine or scrape any content or information on the Service, or otherwise using, accessing, or collecting any content, data, or information from the Service using automated means;
12.19 without Focus on Camera’s prior written consent, using the Service or any content on the Service to develop any software program, and for this purpose, developing any software program includes (but is not limited to) training any machine learning or artificial intelligence system, refining outputs (such as by manually comparing to Focus on Camera content), and the like;
12.20 caching or archiving any content on the Service, except in the case of a public search engine using spiders to create search indices; and
12.21 otherwise using the Service for any reason for which the Service is not intended.
13. Intellectual Property.
Focus on Camera may enable you to add posts, texts, photos, links, ratings, reviews, survey responses, and other files and information to share with Focus on Camera and others subject to any applicable Community Rules. All material that you share, upload, publish, or display to others, including your likeness, via the Focus on Camera platform will be referred to collectively as “Your Content.” By submitting, posting, or displaying Your Content on Focus on Camera, you grant Focus on Camera a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable (through multiple tiers), license to use, copy, reproduce, process, adapt, modify, create derivative works from, publish, transmit, store, display and distribute, translate, communicate and make available to the public, and otherwise use Your Content in connection with the operation or use of Focus on Camera or the promotion, advertising or marketing of Focus on Camera or our business partners, in any and all media or distribution methods (now known or later developed), including via means of automated distribution, such as through an application programming interface (also known as an “API”). You agree that this license includes the right for Focus on Camera to make Your Content available to other companies, organizations, business partners, or individuals who collaborate with Focus on Camera for the syndication, broadcast, communication and making available to the public, distribution or publication of Your Content on Focus on Camera or through other media or distribution methods. This license also includes the right for other users of Focus on Camera to use, copy, reproduce, adapt, modify, create derivative works from, publish, transmit, display, and distribute, translate, communicate and make available to the public Your Content, subject to the Terms of Service.
Furthermore, Company may disclose Your Content if: (a) Company determines that disclosure is necessary to enforce these Terms of Service, respond to claims that any of Your Content violates the rights of third parties, or protect the rights, property, or personal safety of Company, its users, and the public; or (b) Company’s legal counsel determines that appropriate legal process requires disclosure. You also acknowledge and agree that you are not guaranteed access to Your Content at any time. Without limiting the generality of the foregoing, you authorize Company to include Your Content in a searchable format that may be accessed by users of the Service and Third Party Websites, provided, however, that Company shall have no liability for Your Content that can be public and visible on the Service, Third Party Websites, or search engines, including after deletion of Your Content by you or Company.
13.2. Compliance with Law. You represent and warrant that, when using the Service, you will obey all applicable laws and respect the intellectual property rights of others. Your use of the Service is at all times governed by and subject to copyright and other intellectual property laws. You agree not to upload, post, transmit, display, perform, or distribute any content, information, or other materials in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. You accept full responsibility for avoiding infringement of the intellectual property or personal rights of others or violation of laws and regulations in connection with any content, information, or other materials that you post or share on the Service.
13.3. Trademarks. Focus on Camera and the Focus on Camera logo (collectively, the “Company Marks”) are trademarks or registered trademarks of Company. Other trademarks, service marks, graphics, logos, and domain names appearing anywhere on, through, or in connection with the Service may be the trademarks of third parties. Neither your use of the Service nor this Agreement grant you any right, title, or interest in, or any license to reproduce or otherwise use, the Company Marks or any third-party trademarks, service marks, graphics, logos, or domain names. You agree that any goodwill in the Company Marks generated as a result of your use of the Service will inure to the benefit of Company.
13.4. Copyrighted Materials; Copyright Notice. All content and other materials available through the Service, including without limitation the Focus on Camera logo, design, text, graphics, and other files, along with their selection, arrangement, and organization, are either owned by Company or are the property of Company’s licensors and suppliers. Except as explicitly provided, neither your use of the Service nor this Agreement grant you any right, title, or interest in any such materials. You may not remove or obscure any copyright notices or other notices utilized in any content and other materials available through the Service. You, or your licensors, as applicable, retain ownership of the copyright and other intellectual property in Your Content, subject to the non-exclusive rights granted above.
14. Disclaimers; Limitation of Liability.
14.1. No Warranties. Company, on behalf of itself and its licensors and suppliers, expressly disclaims any and all warranties, express or implied, regarding the Service, arising by operation of law or otherwise, including without limitation any and all implied warranties of merchantability, fitness for a particular purpose, non-infringement, no encumbrance, or title, in addition to any warranties arising from a course of dealing, usage, or trade practice. Neither Company nor its licensors or suppliers warrants that the Service will meet your requirements, or that the operation of the Service will be uninterrupted or error-free.
14.1.2 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE AND ALL CONTENT THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, NONINFRINGEMENT, AVAILABILITY, OR ACCURACY OF INFORMATION. FOCUS ON CAMERA DOES NOT WARRANT THAT THE SERVICE WILL BE AVAILABLE, WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR WILL OPERATE IN AN UNINTERRUPTED, ERROR- FREE OR COMPLETELY SECURE MANNER, OR THAT ERRORS OR DEFECTS, WHETHER KNOWN OR UNKNOWN, WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT FOCUS ON CAMERA IS NOT LIABLE FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY OF YOUR CONTENT OR PERSONALIZATION SETTINGS RELATED TO THE SERVICE. FOCUS ON CAMERA DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE.
14.2. Your Responsibility for Loss or Damage; Backup of Data.
14.2.1. You agree that your use of the Service is at your sole risk. You will not hold the Company or its licensors and suppliers, as applicable, responsible for any loss or damage that results from your access to and/or use of the Service, including without limitation any loss or damage to any of your computers, mobile devices, including without limitations tablets and/or smartphones, or data. The Service may contain bugs, errors, problems, or other limitations.
14.2.2. Furthermore, you acknowledge that a catastrophic disk failure or other similar event could result in the loss of all of the data related to your Account. You agree and understand that it is your responsibility to back up your data to your personal computer or external storage device and to ensure such backups are secure.
14.3. LIMITATION OF LIABILITY. YOU AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY (INCLUDING ITS LICENSORS AND SUPPLIERS) WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY AND ITS LICENSORS AND SUPPLIERS SPECIFICALLY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, INDIRECT OR DIRECT LOSS OF PROFITS, BUSINESS INTERRUPTION, REPUTATIONAL HARM, OR LOSS OF DATA (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE) ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF, OR INABILITY TO USE, THE SERVICE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT COMPANY AND ITS LICENSORS AND SUPPLIERS SHALL BE IN NO WAY RESPONSIBLE FOR ANY ACTION TAKEN AGAINST YOU BY ANY THIRD PARTY RELATED TO YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, CURRENT OR POTENTIAL EMPLOYERS TAKING ADVERSE ACTIONS AGAINST YOU, INSTITUTIONS OF HIGHER EDUCATION PURSUING CLAIMS FOR VIOLATIONS OF HONOR CODES OR OTHER SCHOOL POLICIES, ETC. IN NO EVENT SHALL COMPANY OR ITS LICENSORS OR SUPPLIERS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR LOST REVENUES), WHETHER CAUSED BY THE ACTS OR OMISSIONS OF COMPANY, COMPANY’S LICENSORS OR SUPPLIERS, COMPANY PARTIES, OR FOCUS ON CAMERA USERS, OR THEIR AGENTS OR REPRESENTATIVES, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO COMPANY OR ITS LICENSORS OR SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICE. FURTHERMORE, IN NO EVENT SHALL COMPANY’S OR ITS LICENSORS’ OR SUPPLIERS’ TOTAL CUMULATIVE LIABILITY EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID COMPANY FOR YOUR ACCESS OR USE OF THE SPECIFIC PRODUCT, FEATURE, OR SERVICE WITHIN THE SERVICE IN THE PRIOR THREE (3) MONTHS, AND (B) THE SUM OF ONE HUNDRED DOLLARS ($100). THESE LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. YOU AGREE THAT THESE LIMITATIONS OF LIABILITY REPRESENT A REASONABLE ALLOCATION OF RISK AND ARE A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU. THE SERVICE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
14.4. Application of Disclaimers. The above disclaimers, waivers, and limitations do not in any way limit any other disclaimer of warranties or any other limitation of liability in any other agreement between you and Company or between you and any of Company’s licensors and suppliers. Some jurisdictions may not allow the exclusion of certain implied warranties or the limitation of certain damages, so some of the above disclaimers, waivers, and limitations of liability may not apply to you. Company’s licensors, suppliers, and third-party vendors are intended third-party beneficiaries of these disclaimers, waivers, and limitations. No advice or information, whether oral or written, obtained by you through the Service or otherwise shall alter any of the disclaimers or limitations stated in this Section.
15. Your Representations and Warranties.
You represent and warrant that your use of the Service will be in accordance with this Agreement and any other Company policies as amended from time to time, and with any applicable laws or regulations.
16. Indemnity by You.
16.1. Without limiting any indemnification provision of this Agreement, you (the “Indemnitor”) agree to defend, indemnify, and hold harmless Company and the Company Parties (defined in the “Assumption of Risk; Release” section above) (collectively, the “Indemnitees”) from and against any and all Claims (defined as any claim, demand, loss, or assertion of liability, by any third party, in any form or forum), including but not limited to legal costs and fees, and providing sole and exclusive control of the defense of any action to Company, including the choice of legal counsel and all related settlement negotiations, arising out of or relating to: (i) the relationship between you and Company or Company Parties, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (iii) your access to or use of the Service; (iv) your provision to Company, the Company Parties, or the Service of any information or data; (v) your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (vi) your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
16.2. The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify, or hold harmless any, each, and/or all Indemnitees. You may not settle any Claim without the prior written consent of the concerned Indemnitees.
16.3. Without limitation, the Indemnitor also agrees to compensate Company for any and all lost revenues, future lost profits, reasonable search costs, and any other reasonable expenses resulting from any Indemnitor violation of the “Prohibited Uses” section, including, without limitation, any suspension of affiliate accounts or affiliate payments attributable to fraudulent efforts to manipulate or otherwise modify reported impressions generated by the Company or Company Parties under any affiliate advertising agreement.
17. Dispute Resolution: Mandatory Class and Collective Action Waiver.
Important: This Section limits certain legal rights and includes a waiver of the right to participate in any form of class or representative action, and limits your ability to obtain certain remedies and forms of relief. Please review carefully.
17.1. You agree that you will not sue Focus on Camera as a class plaintiff or class representative, join as a class member, or participate as an adverse party in any way in a class action lawsuit against Focus on Camera. Nothing in this Section, however, limits your rights to bring a lawsuit as an individual plaintiff.
17.2. If Company takes legal action against you in connection with any actual or suspected breach of this Agreement, Company will be entitled to recover from you as part of such legal action, and you agree to pay, all reasonable costs and attorneys’ fees.
17.3. You understand, acknowledge, and agree that any legal proceeding arising out of or relating to these Terms of Service, your use of the Service, or your relationship with Focus on Camera shall have, as its forum, a state or federal court of competent jurisdiction in the State of Georgia. You hereby waive any objection to personal jurisdiction or venue in the state or federal courts of the State of Georgia.
17.4. In any legal proceeding arising out of or relating to these Terms of Service, your use of the Service, or your relationship with Focus on Camera, the governing law (including substantive and procedural laws) shall be that of the State of Georgia, without regard to Georgia’s choice-of-law provisions.
17.5. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY LAWSUIT AGAINST FOCUS ON CAMERA MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE FOREVER BARRED.
18. Termination.
18.1. By Company. Without limiting any other provision of this Agreement, Company reserves the right to, in Company’s sole discretion and without notice or liability, deny or terminate use of the Service to any person for any reason or for no reason at all, including without limitation for any breach or suspected breach of any representation, warranty, or covenant contained in this Agreement, or of any applicable law or regulation.
18.2. By You. You may terminate this Agreement and your rights under it at any time, for any or no reason at all, by providing to Company notice of your intention to do so, in the manner required by the “Notices” section.
18.3. Effect of Termination.
18.3.1. Any termination of this Agreement automatically terminates all rights and licenses granted to you under this Agreement, including all rights to access or use the Service. Upon termination, Company may, but has no obligation to, in Company’s sole discretion, rescind any services and/or delete from Company’s systems all your Personal Information and any other files or information that you made available to Company or that otherwise relate to your use of the Service. Upon termination, you shall stop any and all access and use of the Service.
18.3.2. After termination, Company reserves the right to exercise whatever means it deems necessary to prevent your unauthorized use of the Service, including without limitation technological barriers such as IP blocking and direct contact with your Internet Service Provider.
18.4. Legal Action. The Company Parties will have no legal obligation or other liability to you or to any third party arising out of or relating to any termination of this Agreement.
18.5. Survival. Upon termination, all rights and obligations created by this Agreement will terminate, except that the following Sections will survive any termination of this Agreement: Section 1.1 (Agreement), Section 2 (Privacy Policy), Section 4 (Eligibility), Section 5 (License), Section 7 (No Reliance on Third Party Content), Section 8 (Assumption of Risk; Release), Section 9 (Consent to Receive Electronic Communications from Company and Feedback), Section 11 (Third Party Websites), Section 12 (Prohibited Uses), Section 13 (Intellectual Property), Section 14 (Disclaimers; Limitation of Liability), Section 15 (Your Representations and Warranties), Section 16 (Indemnity by You), Section 17 (Dispute Resolution; Mandatory Class and Collective Action Waiver), Section 18 (Termination), Section 18 (Notices), and Section 20 (General), as well as any other provisions contained in any Section which by their terms impose continuing obligations.
19. Notices.
All notices required or permitted to be given under this Agreement must be in writing.
19.1. Company shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to Company, e.g., via an Account on the Service. Subject to the “Consent to Receive Electronic Communications from Company and Feedback” section, you agree that any notice received from Company electronically satisfies any legal requirement that such notice be in writing.
19.2. You bear the sole responsibility of ensuring that your email address in your Account is accurate and current, and notice to you shall be deemed effective upon the sending by Company of an email to that address.
19.3. You shall give any notice to Company by email to [email protected].
19.4. Company and you acknowledge that Company, not Provider, is responsible for addressing any claims by you or any third party relating to the Service or your use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
19.5. Provider shall in no way be responsible for any claim (including any related investigation, defense, settlement or discharge thereof) that the Service or your use of the Service infringes any third party’s intellectual property rights.
20. General.
20.1. Entire Agreement. This Agreement constitutes the entire agreement between Company and you concerning your use of the Service.
20.2. Partial Invalidity. Should any part of this Agreement be declared invalid, void, or unenforceable by a court of competent jurisdiction, that decision shall not affect the validity of any remaining portion of this Agreement, which shall remain in full effect, and the parties acknowledge and agree that they would have executed the remaining portion without including the part so declared by a court of competent jurisdiction to be invalid, void, or unenforceable.
20.3. Amendments. This Agreement may be modified only by a written amendment signed by an authorized executive of Company, or by the unilateral amendment of this Agreement by Company along with the posting by Company of that amended version. Any changes to this Agreement will be effective upon Company’s posting of the notice; provided that these changes will be prospective only and not retroactive. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICE, YOU ARE ENTERING INTO A NEW AGREEMENT WITH COMPANY ON THE THEN APPLICABLE AGREEMENT AND YOU AGREE THAT COMPANY MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM, OR A LINK TO THEM, ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH COMPANY ELECTS), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NEW AGREEMENT HAS BEEN POSTED CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS. If you do not agree to the changes, you should not use the Service or any services offered through the Service after the effective date of the changes. Company suggests that you revisit this Agreement regularly to ensure that you stay informed of any changes.
20.4. No Waiver. A waiver by either party of any term or condition of this Agreement, or any breach, in any one instance, will not waive that term or condition or any later breach.
20.5. Assignment. This Agreement and all of your rights and obligations under it will not be assignable or transferable by you without the prior written consent of Company. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.
20.6. Independent Contractors. You and Company are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement.
20.7. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, with the following exceptions: the Company Parties; Company’s licensors and suppliers (to the extent expressly stated in this Agreement); and to the extent stated in the following Sections: Section 7 (No Reliance on Third Party Content), Section 11 (Third Party Websites), Section 14.4 (Application of Disclaimers).
20.8. Injunctive Relief. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third-party rights by you would cause irreparable injury to Company and Company’s licensors and suppliers, and would therefore entitle Company or Company’s licensors or suppliers, as the case may be, to injunctive relief.
20.9. Interpretation. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
20.10. Headings. The headings in this Agreement are for convenience only, and shall have no legal or contractual effect.