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Privacy Policy close

(Last Updated: August 7, 2006)

We hate spam, just like you.

At SmugMug, Inc. ("SmugMug," "we," or "us"), we are deeply committed to ensuring the privacy of our customers.

This Privacy Policy (this "Policy") describes how personal information is collected from users of SmugMug's website at www.smugmug.com (the "Site"), and how that information is used and disclosed.

By using our Site, you consent to the terms of this Policy.

For information about how to make your photo galleries private and/or secure, please see the following link: http://www.smugmug.com/help/private-albums.

What is Personal Information?

Personal information specifically identifies an individual, such as an individual's name, address, telephone number, e-mail address, credit card or other account number, and information about that individual's activities when directly linked to him or her, such as information about his or her purchases.

Personal information also includes demographic information, such as date of birth, gender, geographic area and preferences when such information is linked to other personal information that identifies an individual.

Personal information does not include "aggregate" information. Aggregate information is data collected about a group or category of products, services or customers from which individual customer identities have been removed. In other words, information about how you use a service may be collected and combined with information about how others use the same service, but no personal information will be included in the resulting data. Likewise, information about the products you purchase may be collected and combined with information about the products purchased by others. Aggregate data helps us understand trends and customer needs so that we can better consider new products and services, and tailor existing products and services to customer desires.

Personal Information We Collect

You provide personal information to us in a number of ways when you visit the Site. For example, you provide us with personal information when you:

  • create an account and subscribe to our digital photography, media hosting or other services ("Services")
  • purchase prints or other products
  • participate in a survey, contest or sweepstakes on the Site
  • contact us by email for any reason, such as to request help with the Services, or to provide us with your comments/feedback
  • submit a resume to us via email
  • or post personal information in connection your photos/galleries (e.g., in a photo caption) or in other forums or interactive areas on the Site.

We collect your name, billing and shipping addresses, email address, phone number, credit card number and expiration date in this manner. We may also collect certain demographic information in connection with your participation in any survey, contest or sweepstakes on the Site.

Important Note: You have the option of telling us how you wish to be identified in connection with your photos, galleries, comments and elsewhere on the Site. If you choose to use your real name (or include any personally identifying information as part of your "nickname") that information will be publicly displayed on our Site. Therefore, please use caution in determining how you wish to be identified on the Site.

Additionally, when you visit our Site, some information is automatically collected, such as your computer's operating system and browser type, version, and capabilities (such as whether JavaScript is enabled and cookies are accepted), your Internet Protocol (IP) address and the time and date of your visit, the referring site (if applicable), as well as screen resolution, color and depth. This information is tracked through the use of "cookies" and "Web beacons."

Cookies are small files that are stored on your computer by your browser at the request of a web site to store your personal preferences. We use cookies to keep you logged in to the Site, to count the number of unique computers visiting the Site, and to record your user preferences.

Web beacons, also known as Web bugs, are small, graphic images on a Web page or other Web-based content that allow the site owner or a third party to monitor the IP address and other information of the site or computer viewing the Web page or content. Web beacons are often invisible to the user because they are typically very small (only 1-by-1 pixel) and the same color as the background of the Web page or other Web content. Web beacons collect the IP address of the computer to which the Web beacon is sent, the URL of the page from which the Web beacon comes, and the time it was viewed. Web beacons can be linked to personal information.

We may place Web beacons on the Site in conjunction with cookies to monitor how visitors are navigating and/or interacting with the Site. We treat automatically collected information as personal information if we combine it with or link it to any of the personal information identified above. Otherwise, it is used in the aggregate only.

Some third parties may place cookies in advertisements and in other locations on the Site, and may place Web beacons on the Site in conjunction with such cookies. Information collected by these third parties is subject to those third parties' policies governing use and disclosure of personal information. In addition, a third-party service is used to anonymously track traffic data on the Site through the use of a cookie that is not linked to, and does not track, any personally identifiable information about users of our Site.

How We Use Personal Information

In general, we use personal information collected on the Site to provide the Services and otherwise process transactions on the Site, to provide support for the Services, to respond to user requests and inquiries, to maintain a record of our dealings with Site users, to develop new products and services and to inform users about products or services we think will be of interest.

For example, we use your information to process orders of subscriptions to the Services or purchases or prints or other products, to communicate with you about your product purchases, your subscription(s) and/or use of the Services or the Site, to provide support in response to your inquiries, to send you promotional materials via email and postal mail, to improve our products and services and to develop new products and services. When we use your personal information in our internal marketing efforts, we provide you with choices (see "Choice," below). We may also receive information from third parties with whom we have business relationships, and may combine this information with the other personal information we maintain about you (for example, we may receive updated information about you, such as an updated billing address, from the financial institution issuing your credit card in connection with billing for Services). If we do so, this Policy governs such information.

Sharing of Personal Information

We do not sell, rent or share personal information with third parties without your prior consent except in the limited circumstances described in this Policy. We may share personal information with third-party vendors who assist us in performing internal functions necessary to operate our business. These functions may include, for example, analyzing traffic information or other data, providing marketing assistance, mailing items, processing credit card transactions, and fulfilling or delivering orders. In all cases we limit the information shared with our third-party vendors to that which is necessary to carry out those functions. We are not responsible for any additional information you provide to these parties, and we encourage you to become familiar with their practices before disclosing information directly to them. We may also share personal information in connection with Affiliated Sites (as discussed in more detail below).

We also disclose personal information when we believe it is appropriate to comply with the law (e.g., a lawful subpoena, warrant or court order) or with requests of law enforcement authorities; to enforce or apply this Policy or our other policies or agreements; to initiate, render, bill and collect for amounts owed to us; to protect our or our customers' rights, property or safety; to protect our customers from fraudulent, abusive, or unlawful use of, our Site; or if we reasonably believe that an emergency involving immediate danger of death or serious physical injury to any person requires disclosure of communications or justifies disclosure of records without delay. In addition, information about our customers, including personally identifiable information, may be disclosed as part of any merger, acquisition, debt financing or sale of company assets, as well as in the event of an insolvency, bankruptcy or receivership in which personally identifiable information could be transferred to third parties as one of our business assets.

Links to Other Web Sites

The Site may contain links to other Web sites. Links from our Site to other sites or content are provided for your convenience only, and we do not have control over the content or privacy and security practices and policies of such third parties or other sites. Any personal information you provide on linked pages is provided directly to that third party and is subject to that third party's privacy policy. We encourage you to learn about their privacy and security practices and policies before providing them with personal information.

We may also link to or from Web sites that are maintained by SmugMug and/or one or more of our clients, subscribers or business partners or hosted by SmugMug ("Affiliated Sites"). When you submit personal information to Affiliated Sites you may be submitting it to both SmugMug and/or the applicable client, subscriber or business partner. We may also share personal information we collect through Affiliated Sites with the applicable clients, subscribers and/or business partners and vice versa. For example, if you purchase prints or other products from one of our subscriber's (e.g., a professional photographer) sites maintained or hosted by SmugMug, we may share your name and email address with such subscriber so that they may provide you with assistance or answer questions you may have in connection your purchases. In such cases, the subscriber's must agree to use such information only for the purpose for which it was provided to them by SmugMug. Information submitted to us through Affiliated Sites will be governed by this Policy. Information you submitted to our client, subscriber or business partner through Affiliated Sites will be subject to such client's, subscriber's or business partner's privacy policy and/or practices which may differ from this Policy. We do not have control over the privacy practices of Affiliated Sites. We encourage you to read the privacy policies on any Affiliated Site to which you link for information on the privacy practices of that site.

Use of our Site by Children

We encourage parents to take an active interest in their children's use of the Internet. The Site is not designed to collect information from children who are under 13 years of age, and we do not intend to collect such information. If you are under 13, you should not provide information on our Site.

Security

We have put into place reasonable security measures in an effort to prevent loss, misuse and alteration of information while it is under our control. We cannot, however, guarantee the protection of information against interception, misappropriation, misuse or alteration, nor can we promise that your information may be not be disclosed or accessed by accidental circumstances or by the unauthorized acts of others. Furthermore, we have no control over the security of other sites you might visit, interact with or do business with.

Orders placed on our Site are protected by the Secure Sockets Layer (SSL) protocol to ensure privacy and security of your ordering and payment information. We also use encryption technologies to protect billing information that we retain.

When you register for an account on the Site, we ask you to create a "nickname" and password. To protect the confidentiality of your personal information, you must keep your password confidential and not disclose it to any other person. You are responsible for all uses of the Site by any person using your password. Please advise us immediately if you believe your password has been misused or otherwise misappropriated.

Choice

To opt-out of receiving marketing or other promotional communications from us, or to access, change or delete your personal information maintained by us, we provide you with the following options: you may (1)  follow the "Unsubscribe" instructions contained in the communication from us; (2) email us at help@smugmug.com; or (3)  write to us at the following address with your request:

SmugMug
Attn: Web Site Issues
3347 Shady Spring Lane
Mountain View, CA 94040

If, in the future, we decide to share personal information with any third parties for their own (or another third party's) marketing purposes, we will update this Policy to reflect such change and provide you with the opportunity to opt-out of such disclosure of your personal information.

Policy Changes

We will modify this Policy if our privacy practices materially change in the future and we will notify you of such changes only by posting the modified Policy on our Site and indicating at the top of the Policy the date it was last updated. We encourage you to review this Policy each time you visit our Site to see if it has been updated since your last visit and to make sure you understand how information you provide will be used.

Your Comments or Concerns

We welcome your feedback. If you have any comments or concerns about this Policy or would like to contact us for any reason, you may reach us via email at help@smugmug.com.

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Have you read and agreed to our Terms of Use?

Date of Last Revision: March 26, 2009

PLEASE READ THESE TERMS AND CONDITIONS OF USE ("TERMS OF USE") CAREFULLY. BY ACCESSING OR USING THIS WEB SITE, YOU AGREE TO BE BOUND BY THESE TERMS OF USE.

Welcome to SmugMug! We love photography and for the most part SmugMug.com (the "Site") is all about photos and camaraderie. For the protection of our partners, suppliers, you and us, however, the Terms of Use are very important.

This Site is owned and operated by SmugMug, Inc. ("SmugMug"). These Terms of Use apply to your access to, and use of, the Site, your use of any digital photography, media hosting services, other services provided on or through this Site (the "Services"), and to your purchase of any photographic prints or other products ("Products") from SmugMug. However, these Terms of Use don’t alter in any way the terms or conditions of any other agreement you may have with SmugMug. Your use of the Site and the Services and your purchase of Products is expressly conditioned upon your agreement to these Terms of Use. You consent to our communicating with you about the Site, the Products and the Services by email and/or system messages, and if necessary, by regular mail or telephone.

SmugMug reserves the right to change any provision of these Terms of Use, and any other terms, policy or guideline governing your use of the Site, at any time in its sole discretion. Such changes will be effective immediately upon posting such revisions on the Site, and you waive any right you may have to receive specific notice of such changes. Your continued use of this Site or the Services or the purchase of any Products following the posting of such changes will confirm your acceptance thereof. You should frequently review these Terms of Use and any other applicable policies or guidelines on the Site. Keep up to date by subscribing to the RSS feed on this page.

A. GENERAL TERMS

1. Privacy

Please refer to the Site's Privacy Policy for information on how we collect, use and disclose personal information from users of the Site. You understand and agree that we store and process your personal information on computers located in the United States.

2. Hosting Service Terms

SmugMug's online media hosting and related services (the "Hosting Services") provide you a place to store your photographs or videos (collectively, "Photos"). By subscribing to or using any Hosting Services, you agree to be bound by and accept the additional terms and conditions set forth in Section B below (the "Hosting Service Terms"), which are a part of these Terms of Use.

3.   Sales Terms

Please refer to our Terms of Sale as set forth in Section C below for the additional terms, conditions and policies applicable to your purchase of Products through the Site. By ordering Products through the Site, you agree to be bound by and accept the Terms of Sale, which are a part of these Terms of Use.

4.   License Agreement

SmugMug's Site enables any person or entity who owns or is otherwise authorized to license Photos (the "Content Owner") to post such Photos on the Site and to use SmugMug's shopping cart to facilitate the license of such Photos by the Content Owner through the Site. These licenses are made directly between the user and the Content Owner and are merely facilitated by SmugMug. SmugMug Professional subscribers may make Photos available for license to Site users through the Site by setting prices for them in the pricing tool. By posting any Photos and indicating the Photos may be licensed by Site users, Content Owners agree to be bound by and accept the terms and conditions set forth in Section D below, which are a part of these Terms of Use. If you license any Photos from a Content Owner through the Site, you agree to the terms of the applicable end user license agreement (the Commercial Use License or Personal Use License), which are accessible through the foregoing links and are a part of these Terms of Use.

5.   Copyright And Limited License

The Site and all Photos, text, video, code and other content and materials on the Site and the selection and arrangement thereof (collectively, the "Site Materials") are the property of SmugMug or its licensors or users and are protected by United States and international copyright laws.

SmugMug grants you a limited, non-sublicensable, revocable license to access and use the Site solely in accordance with, and subject to, the terms set forth in these Terms of Use and any other applicable terms or agreements you may enter into with SmugMug. Except as otherwise expressly permitted in writing, the license does not include, and you agree to refrain from:

  1. the collection, copying or distribution of any portion of the Site or the Site Materials;
  2. any resale, commercial use, commercial exploitation, distribution, public performance or public display of the Site or any of the Site Materials;
  3. modifying or otherwise making any derivative uses of the Site or any of the Site Materials;
  4. scraping or otherwise using any data mining, robots or similar data gathering or extraction methods;
  5. with the exception of your own photos, or others' photos available for download, the downloading of any portion of the Site, the Site Materials or any information contained therein; or
  6. any use of the Site or the Site Materials other than for their intended purposes.

Any use of the Site or of any Site Materials other than as specifically authorized herein, without the express prior written permission of SmugMug or the Content Owner, is strictly prohibited and will terminate and constitute a breach of the license granted herein.

6.   Repeat Infringer Policy

In accordance with the Digital Millennium Copyright Act and other applicable law, SmugMug has adopted a policy of terminating, in appropriate circumstances and at SmugMug's sole discretion, account holders who are deemed to be repeat copyright infringers. SmugMug may also, at its sole discretion, limit access to the Site and/or terminate any account holders who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

7.   Copyright Complaints

If you believe that any material on the Site infringes upon any copyright that you own or control, you may file a notification of such infringement with our Designated Agent as set forth below.


Designated Agent:Andy Williams
Address of Designated Agent:3347 Shady Springs Lane
Mountain View, CA 94040
E-mail Address of Designated Agent:help@smugmug.com

8.   Trademarks

"SMUGMUG", the SmugMug logo, the look and feel of the Site, and any other Product or Service names, logos or slogans of SmugMug contained in the Site are trademarks of SmugMug (collectively, the "SmugMug Marks") and may not be copied, imitated or used without the prior written permission of SmugMug. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Site are the property of their respective owners.

9.   Hyperlinks

You may create a text hyperlink to the Site, provided such link does not portray SmugMug or any of its Products or Services in a false, misleading, derogatory or otherwise defamatory manner This limited right may be revoked by SmugMug at any time. Further, you may not ,frame the Site without SmugMug's express written consent.

SmugMug makes no representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party Web sites accessible by hyperlink from the Site, or Web sites linking to the Site. SmugMug provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation or endorsement of any site or any information contained therein. When you leave the Site, you should be aware that our terms and policies no longer govern.

10.   Third Party Content

SmugMug may host third party content on the Site ("Third Party Content") solely as a convenience to its users. Such inclusion does not imply affiliation, endorsement, approval, or control by SmugMug of any Third Party Content. SmugMug makes no claim or representation regarding, and accepts no responsibility for, such Third Party Content or for the quality, accuracy, nature, ownership or reliability thereof. Users use such Third Party Content at their own risk.

11.   "SmugVault" Account

SmugMug provides the opportunity to obtain a "SmugVault Account" for increased storage capability. The SmugVault service is provided through Amazon.com's Simple Storage Service ("Amazon S3") and is governed by the terms of service for Amazon S3, in addition to these Terms of Use. If you choose to avail yourself of the SmugVault service, you should review Amazon.com's terms of service, as well as its policy regarding privacy and data gathering practices, and any other applicable policies, prior to use of the SmugVault service. In order to utilize the SmugVault services, you must sign up for and obtain an Amazon S3 account. The agreement pertaining to your Amazon S3 account is directly and strictly between you and Amazon.com, and SmugMug is not a party to that agreement. Accordingly, any questions regarding your Amazon S3 account must be directed to Amazon.com, including but not limited to questions regarding billing. This service is provided solely as a convenience to you and does not imply endorsement, approval, control or adoption by SmugMug of Amazon S3. SmugMug makes no claim or representation regarding, and accepts no responsibility for, your use of Amazon S3, or for the quality, accuracy, nature, ownership or reliability thereof. You use Amazon S3 and SmugVault at your own risk. Please note that when files are deleted by emptying your trash, those files cannot be recovered by SmugMug or Amazon.

12.   Advertisements And Promotions; Third Party Products and Services;

SmugMug subscribers (on their own sites) or SmugMug (on public areas of the Site) may run advertisements and promotions from third parties on the Site or facilitate the sale of certain products or services by third parties through the Site. Your business dealings or interactions with such third parties, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party, and SmugMug does not endorse, approve, or control any such products, services, advertising or promotions. SmugMug is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or third party products and services on the Site.

13.   User Content

The Site includes media hosting and storage services, discussion forums or other interactive areas in which you or other users may post or transmit Photos, text, music, messages, information or other content or materials ("User Content"). You are solely responsible for the User Content you post or transmit and you agree not to post, transmit or otherwise publish through the Site any of the following:

  1. User Content that is unlawful, defamatory, obscene, pornographic, indecent, lewd, sexually suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable or harmful, including without limitation photographs or other User Content containing nudity that would be unacceptable in a public museum where minors visit;
  2. User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, endanger national security, or that would otherwise create liability or violate any local, state, national or international law;
  3. User Content that may infringe or violate any patent, trademark, trade secret, copyright or other intellectual or other proprietary right of any party;
  4. User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
  5. Unsolicited promotions, political campaigning, advertising or solicitations;
  6. Private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
  7. Viruses, corrupted data or other harmful, disruptive or destructive files; and
  8. User Content that, in the sole judgment of SmugMug, is objectionable, harmful or which restricts or inhibits any other person from using or enjoying the Site, or which may expose SmugMug or its users to any harm or liability of any nature.

Although we prohibit certain activities in these Terms of Use, SmugMug does not control and takes no responsibility or liability for any User Content or for any loss or damage thereto, or for the nature of the User Content you may encounter. Your use of the Site is at your own risk.

Although SmugMug has no obligation to screen, edit or monitor any of the User Content posted on the Site, SmugMug reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the Site at any time and for any reason without notice. You are solely responsible for creating backup copies of and replacing any User Content you post or store on the Site at your sole cost and expense.

You retain the copyright in any User Content you post on the Site. SmugMug neither has nor wants any ownership of your Content. However, by uploading and/or posting any User Content to the Site, you grant SmugMug a perpetual, nonexclusive and royalty-free right to use the User Content and the name that is submitted in connection with such User Content, as is reasonably necessary to display the User Content, provide the Services and to facilitate, at Content Owner's direction, the license of Photos or the sale of Products on the Site.

You understand and acknowledge that any User Content contained in public postings, including any galleries that are not designated as unlisted, will be accessible to the public and could be accessed, indexed, archived, linked to and republished by others including, without limitation, appearing on other web sites and in search engine results. Therefore, you should be careful about the nature of the User Content you post. SmugMug will not be responsible or liable for any third party access to or use of the User Content you post. SmugMug provides many security options and settings for your content and you should read and understand them all.

You represent and warrant that (a) you own or otherwise control all of the rights to the User Content that you post or transmit, or you otherwise have the right to post, use, display, distribute and reproduce such User Content and to grant the rights granted herein; (b) the User Content you supply is accurate and not misleading; and (c) use and posting of the User Content you supply does not violate these Terms of Use and will not violate any rights of or cause injury to any person or entity.

14.   Your Account.

Certain activities on the Site require you to register and create an account. In order to create an account, you must be 18 years of age or older. By registering, you represent and warrant that you are over 18 and that all information you provide in the registration form ("Registration Data") is complete and accurate. SmugMug reserves the right to refuse service to anyone at any time, with or without cause in its sole discretion. You agree to keep your registered email addresses and other Registration Data current and complete, as SmugMug may send important notices about your account or the Services to that email account.

In order to cooperate with legitimate governmental requests, subpoenas or court orders, to protect SmugMug's systems and customers, or to ensure the integrity and operation of SmugMug's business and systems, SmugMug may access and disclose any information from your account it considers necessary or appropriate, including, without limitation, user profile information (i.e. name, e-mail address, etc.), IP addressing and traffic information, usage history, and posted content. You consent to such disclosure and agree that SmugMug's right to disclose any such information as described above shall govern over any contrary terms in any agreement or policy of SmugMug. For information regarding other ways that SmugMug may use or disclose your Registration Data, please see the SmugMug Privacy Policy.

15.   Account Security

You are solely responsible for maintaining the confidentiality of the password associated with your account and for restricting access to your password and to your computer while logged into the Site. You agree to accept responsibility for all activities that occur under your account or from your computer. We endeavor to use reasonable security measures to protect against unauthorized access to your account and to any User Content you designate as unlisted, hidden or password-protected. We cannot, however, guarantee absolute security of your account, your User Content or the personal information we collect, and we cannot promise that our security measures will prevent third-party "hackers" from illegally accessing the Site or its contents. You agree to immediately notify SmugMug of any unauthorized use or your account or password, or any other breach of security, and to accept all risks of unauthorized access to the Registration Data and any other information you provide to SmugMug.

16.   DISCLAIMER OF WARRANTIES

THE SITE, THE SITE MATERIALS, THE PRODUCTS AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, SMUGMUG DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT AS TO THE SITE, THE SITE MATERIALS, THE PRODUCTS AND THE SERVICES.

SMUGMUG DOES NOT REPRESENT OR WARRANT THAT THE SITE MATERIALS OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SITE, ITS SERVERS OR EMAIL SENT FROM SMUGMUG OR THE SITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SMUGMUG IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT OR PHOTOGRAPHY. SMUGMUG ALSO MAKES NO REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY, RELIABILITY OR SECURITY OF THE SITE AND SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO OR ANY MODIFICATION, SUSPENSION, UNAVAILABILITY, OR DISCONTINUANCE OF THE SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREON.

17.   LIMITATION OF LIABILITY

IN NO EVENT SHALL SMUGMUG OR ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE OR VIEW THE SITE, THE SERVICES, THE PRODUCTS, THE CONTENT OR THE SITE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE, INCLUDING ANY DAMAGES CAUSED BY OR RESULTING FROM YOUR RELIANCE ON ANY INFORMATION OBTAINED FROM SMUGMUG, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY TERMINATION, SUSPENSION OR OTHER FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SMUGMUG'S RECORDS, PROGRAMS OR SERVICES.

IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SMUGMUG, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITE, THE SERVICES, THE PRODUCTS, THE CONTENT OR THE SITE MATERIALS, EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO SMUGMUG FOR ACCESS TO OR USE OF THE SITE OR THE SERVICES OR FOR THE PURCHASE OF PRODUCTS.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

18.   Indemnity

You agree to defend, indemnify and hold harmless SmugMug and its affiliates and subsidiaries (collectively, the "Indemnified Parties"), and the Indemnified Parties' independent contractors, service providers and consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys' fees) arising out of or related to any User Content you post, store or otherwise transmit on or through the Site, your use of or inability to use the Site, the User Content, the Site Materials or the Services, or the licensing of your Photos to third parties through the Site, including any actual or threatened suit, demand or claim made against any of the Indemnified Parties and/or their independent contractors, service providers, employees, directors or consultants, arising out of or relating to your User Content, your conduct, your violation of these Terms of Use or your violation of the rights of any third party.

19.   Applicable Law

Your use of the Site is subject to all applicable local, state, national and international laws and regulations. These Terms of Use and your use of the Site shall be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these Terms of Use shall be filed only in the state and federal courts located in Santa Clara County, California and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms of Use.

20.   Severability

If any provision of these Terms of Use shall be deemed invalid, unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.


B. ADDITIONAL TERMS APPLICABLE TO HOSTING SERVICES ("HOSTING SERVICE TERMS")

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

1.   Subscriptions

The Hosting Services will only be available to users (a) who register for a free trial (when available) or for a subscription to the Hosting Services ("Subscription") and (b) who pay in full the Subscription fees ("Subscription Fees") applicable to the level of Subscription you select (the "Subscription Plan"). SmugMug currently accepts VISA, MasterCard, Discover and American Express credit cards. The various Subscription Plans SmugMug offers and the services, features and Subscription Fees applicable to such Subscription are available on the Site (see http://www.smugmug.com/photos/photo-sharing-features/). By subscribing, you agree to pay all applicable Subscription Fees and other charges in accordance with the particular Subscription Plan you select. Please note that the foregoing does not apply to the termination of your account in accordance with Section B.4 below.

When you first register with SmugMug, SmugMug enables you to use the Hosting Services without charge for a 14 day period (a "Free Trial"). You do not need to provide SmugMug with a credit card or any other form of payment when you first register. If you are not completely satisfied, your account will automatically terminate at the end of the Free Trial. If, at the end of the Free Trial period, you decide to continue to use the SmugMug Hosting Services, then you will need to provide SmugMug with a credit card, and we will charge your credit card for the Subscription Fee applicable to the Subscription Plan selected by you. Your Subscription period will begin at the end of the Free Trial period.

The Hosting Services are intended to be used by SmugMug account holders for limited distribution of photos and, for Power and Pro accounts, videos as well. The Hosting Services are not intended for broad commercial use by commercial sites and services (e.g., CNN or other similar news or broadcasting site), and SmugMug, in its sole discretion, reserves the right to limit, suspend or terminate your use of the Hosting Services if SmugMug determines your use of the Hosting Services is a misuse of the Hosting Services.

2.   Term and Upgrades

All Subscriptions are provided for a one (1) year term, WHICH TERM WILL AUTOMATICALLY RENEW EACH YEAR FOR AN ADDITIONAL ONE (1) YEAR TERM UNLESS THE SUBSCRIPTION IS TERMINATED AND/OR CANCELLED BY YOU OR SMUGMUG PRIOR TO THE END OF SUCH ANNUAL TERM IN ACCORDANCE WITH SECTION B.4 BELOW. Upon such renewal, the credit card designated on your account will be billed the applicable Subscription Fee then in effect at the time of renewal. If you notify SmugMug (via the Control Panel accessible from your SmugMug homepage) that you wish to upgrade to a higher subscription level, then the credit card designated on your account will be billed for the difference in price, prorated for the remainder of your term.

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

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

4.   Termination of Services.

You may request termination of a Subscription at any time by canceling your account in your Control Panel, settings tab, or by sending an email to help@smugmug.com that provides clear written notice of such request, including the "nickname" you provided to SmugMug at the time you ordered your Subscription. When SmugMug receives your termination request, SmugMug will terminate your Subscription if it has the necessary information to do so. SmugMug will notify you of termination via email. SmugMug may request additional information from you prior to terminating your Subscription(s). A Subscription is not terminated in this manner until you receive confirmation of termination from SmugMug.

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

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

You may change your email or the credit card information for your account by using the Control Panel or by sending an email to help@smugmug.com that provides clear written notice of the requested change, including the "nickname" currently associated with your SmugMug Subscription. If the credit card designated on your account is invalid and cannot be billed for the renewal Subscription Fee, then SmugMug may terminate your account for nonpayment. If SmugMug does not have a current, working email address, then you may not receive important notices from us regarding your account, which may include notices regarding termination. If your account is terminated and SmugMug cannot reach you due to an invalid email address or for any other reason, then SmugMug will (subject to Section B.4) endeavor to retain your User Content on the Site for at least 30 days after termination. However, SmugMug cannot guarantee that your User Content will remain on the Site after termination or that you will receive notice of such termination, so you should make a backup copy of any such User Content on a regular basis.

5.   Use of User Information.

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

C. ADDITIONAL TERMS APPLICABLE TO SALES OF PRODUCTS ("TERMS OF SALE")

These Terms of Sale shall form a part of the Terms of Use applicable to your purchases of any reprints of any Photos or other Products from the Site. Other than as specifically provided in any separate written agreement between you and SmugMug, the Terms of Sale may not be altered, supplemented, or amended by the use of any document, such as purchase orders, and all sales are expressly conditioned upon your agreement to these Terms of Sale. In the event of any conflict between these Terms of Sale and the other provisions of the Terms of Use, these Terms of Sale shall control.

1.   Pricing; Payment Terms

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

2.   Shipping Terms and Policies

We endeavor to ship all orders for prints within 1-2 business days. However, orders for merchandise Products, or orders that contain a mixture of finishes and products, may take longer to ship, depending on the items. The estimated delivery time applicable to various methods of shipping are available on the Site at the time you place your order. SmugMug is not responsible for any delays in shipping. Our standard business hours are Monday through Friday 8 a.m. to 5 p.m. Pacific Time. Orders placed after hours or on holidays will be counted as being placed the next business day. We reserve the right to substitute another carrier of equal or lesser cost to deliver your order at our discretion. All shipping charges are the responsibility of the customer and are listed on the Site. Please see our Shipping Charges. Shipping charges will be included in your shopping cart and can be viewed on a summary screen prior to finalizing your order. However, the shipping charge shown during the checkout process is subject to verification and to correction or change without notice, provided that if the actual shipping charge is more than the amount shown in your shopping cart, we will contact you with the correct shipping costs before processing your order, and you will have an opportunity to cancel your order. All orders are shipped FOB shipping point. Title to the physical medium of the Products passes from SmugMug to you upon shipment. If for some reason an item in your order is temporarily out of stock, we may hold your order until it is complete.

3.   Return Policy

SmugMug unconditionally guarantees your satisfaction. If you are unsatisfied with any Photos or other Products you purchase from SmugMug, we will gladly accept the return of any Product you have ordered from us for any reason within thirty (30) days of receipt and reprint the Product or refund the purchase price. Upon completion of the return procedure and receipt of the returned Product, we will resend you the Product or issue you a full refund of the purchase price paid for such Product, whichever you prefer. However, we will generally not refund your original shipping cost unless your order is defective in some manner. Contact SmugMug at help@smugmug.com regarding the replacement or refund of any Product. Please do not contact your credit card company to dispute a charge before contacting SmugMug.

4.   Product Availability and Pricing

SmugMug may revise or discontinue Products at any time without prior notice, and Products may become unavailable even after an order is placed. All prices are subject to change without notice.

5.   Product Descriptions; Pricing; Errors

SmugMug attempts to be as accurate as possible and eliminate errors on this Site. However, we do not warrant that Product descriptions, Photos, pricing or other Material on the Site is accurate, complete, reliable, current, or error-free. In addition, all weights and size dimensions are approximate. If a Product offered by SmugMug is not as described or pictured, your sole remedy is to return it in unused condition for a refund within thirty (30) days of receipt. In the event of an error, whether on the Site, in an order confirmation, in processing an order or otherwise, we reserve the right to correct such error and charge the correct price or cancel the order, and your sole remedy in the event of such error is to cancel your order.

6.   Disclaimer of Warranties

THE FOREGOING RIGHT TO RETURN ANY ORDER WITHIN THIRTY (30) DAYS IS YOUR SOLE AND EXCLUSIVE REMEDY, AND SMUGMUG'S SOLE AND EXCLUSIVE LIABILITY, WITH RESPECT TO THE PURCHASE OF ANY PRODUCTS FROM THE SITE, AND SMUGMUG EXPRESSLY DISCLAIMS AND EXCLUDED ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PURCHASE OF ANY PRODUCTS.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

D. ADDITIONAL TERMS OF SALE

Users with a SmugMug Professional account may license digital version of his or her Photos.

1.   Rights Granted by Content Owner

By uploading or posting Photos to be licensed to Site users using SmugMug's shopping cart, the Content Owner hereby grants to SmugMug the right to facilitate the licensing by Content Owner of Photos posted on SmugMug to a licensee according to the licensing designation ─ a Commercial Use License or Personal Use License ─ identified by the Content Owner upon submission of the Photos. The Content Owner can designate the applicable license, set the license fees and check sales reports by selecting the View Pro Sales option from the tools menu at the top of the Site when logged in.

2.   Content Owner Responsibilities

Content Owner is responsible for all Photos posted to the Site including without limitation the:

  1. designation of and update of Photo license type ─ either personal or commercial ─ through the pro pricing tool
    2. the removal, if necessary, of Photos from the Site.

3.   Media Submission and Licensing

Photos submissions to the Site may be rejected or removed at any time for any reason or for no reason in SmugMug's sole discretion. 

Photos designated for commercial license should be free from any distinguishable third party names, trademarks, logos, copyright designs, works of art, architecture, or any other depictions requiring additional rights. Content Owner understands and agrees that all Photos are licensed directly by the Content Owner to the licensee and the license type and the license fees for Photos within the Site will be chosen by Content Owner. SmugMug merely facilitates and enables such license and is not responsible for the Photos.

So long as Content Owner has agreed to make the Photos available through the Site there will not be any restraint on the licensing of Content through the Site to any Site users to the fullest extent possible, according to the type of license provided by the Content Owner.

4.   Representations and Warranties of Content Owner

Content Owner represents and warrants to SmugMug that:

  1. Content Owner owns (or has legal right to represent and license) all copyright and other rights, title and interest in and to all Photos submitted to the Site and has the right to grant all licenses granted herein without violating the rights of any third party;
  2. if the Content Owner who is agreeing to this Terms of Use is an agent of the copyright owner(s), then the Content Owner has been granted full authority of the copyright owner(s) to enter into this agreement;
  3. all information provided to SmugMug through the Site or by any all other means concerning all Photos, to the best of its knowledge, is true and accurate; and
  4. all Photos on the Site submitted by Content Owner have all necessary releases and permissions required to grant the licenses granted under the applicable license, including without limitation valid Model Releases and Property Releases for Photos depicting recognizable people (living or dead) and private properties, and all written permission regarding all distinguishable trademarks.

5.   Definitions

Capitalized terms used but not defined in these Terms of Use above or on the Site will have the following meanings:

"Commercial Use License" means a licensing type in which the licensee is entitled to use the Photos subject to the commercial use license.

"Model Release" means a written release signed by or on behalf of any living person or the estate of a deceased person who is depicted in whole or in part in any Photos.

"Personal Use License" means a licensing type in which the licensee is entitled to use the Photos subject to the personal use license.

"Property Release" means a written release from the owner and/or occupier of any property that is depicted in whole or in part in any Photos.



Notice for Professional Account holders: Uploading more than 500 photographs of participants in a single sporting event may require a License from PhotoCrazy, Inc. To avoid patent infringement, please contact:
PhotoCrazy, Inc.
Attn: Peter Wolf
509 Raindance Street
Thousand Oaks, California 91360-1219
Email: peter@photocrazy.com

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