Use of the Site
You may access and use the Sites solely for your personal, noncommercial use. Except as expressly authorized hereunder, the Sites may not be reproduced, duplicated, copied, sold, resold, visited, reverse-engineered or otherwise exploited for any commercial purpose without Shutterfly’s prior written authorization. We reserve the right to alter or discontinue the Sites, in whole or in part, at any time in Shutterfly’s sole discretion.
Your Member Account
You may create a member account with any of our Sites by registering your name, providing certain information about yourself, and creating a password. You agree that you will provide complete, current and accurate information about yourself as requested, and that you will keep that information up to date. You are responsible for safeguarding the confidentiality of your username and password that you use to access your member account on the Sites. You agree not to disclose your username or password to any third party. YOU AGREE THAT YOU ARE SOLELY AND FULLY RESPONSIBLE FOR ANY ACTIVITIES OR ACTIONS TAKEN UNDER YOUR ACCOUNT, WHETHER OR NOT YOU HAVE AUTHORIZED SUCH ACTIVITIES OR ACTIONS. You will immediately notify Shutterfly of any unauthorized use of your account on any of our Sites.
In order to create a member account with any of our Sites, you must be at least 13 years of age. You represent to Shutterfly that you are at least 13 years old. If you are not at least 13 years old, please do not set up an account with any of our Sites.
Your Use of our Site
Subject to and conditioned upon your compliance with these Terms, Shutterfly grants to you a non-exclusive, non-transferable, limited right and license, without right of sublicense, to access and use the Sites, including any images, text, graphics, sounds, data, links and other materials incorporated into the Site (other than your User Submitted Materials as defined below), solely as made available by Shutterfly and solely for your own personal purposes. Except as expressly authorized by these Terms, you may not use, reproduce, distribute, modify, transmit or publicly display any portion of the Sites or create derivative works of any portion of the Sites without the written consent of Shutterfly. While using any of our Sites, you agree not to:
- Defame, abuse, harass, stalk, threaten or otherwise violate the rights of others, including without limitation others' privacy rights or rights of publicity;
- Impersonate any person or entity or use any fraudulent, misleading or inaccurate email address or other contact information;
- Restrict or inhibit any other user from using the Sites, including, without limitation, by means of "hacking" or defacing any portion of the Sites;
- Violate any applicable laws or regulations;
- Upload to, transmit through, or display on the Sites (a) any material that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes Shutterfly or any third party's intellectual property or other rights; (b) any confidential, proprietary or trade secret information of any third party; or (c) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication (except as otherwise expressly permitted by us);
- Engage in spamming;
- Transmit any software or other materials that contain any viruses, worms, trojan horses, defects, or other destructive items;
- Modify, adapt, translate, distribute, reverse engineer, decompile or disassemble any portion of the Sites; and
- Remove any copyright, trademark or other proprietary rights notices contained in or displayed on any portion of the Sites.
If you fail to comply with the above rules, such failure shall constitute a breach of these Terms, and, in addition to any other rights or remedies Shuttefly may have, Shutterfly may immediately terminate your access to and use of the Sites.
In addition, there are specific policies applicable to Shutterfly Share Sites. If you use a Shutterfly Share Site, you agree not to:
- Display adult nudity or inappropriate child nudity.
- Upload material in which you do not own the copyright or do not have the copyright owner’s permission to upload the material.
- Upload photographs of people who have not given permission for their photographs to be uploaded to a share site.
- Use the Share Sites for the sale of goods or services.
- Post objectionable material, such as material containing hate or malicious content or offers for adult services, or terrorism or advocacy of violence.
Descriptions, images, references, features, content, specifications, products, price and availability of any products or services are subject to change without notice, and our current prices can be found on our Sites. We make reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products or services on our Sites at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased through our Sites. By placing an order, you represent that the products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product or service; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from making any or all purchase(s); and/or to refuse to provide any user with any product or service.
Title and risk of loss for any purchases pass to you upon our delivery to our carrier. When you place an order, we will not charge you until we ship the items ordered. We reserve the right to ship partial orders (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of shipment.
Our Sites may provide you with access to a calendar feature where you can store birthdays, anniversaries, and other key dates and details about friends and family, and we may send you email reminders of the personalized dates you have entered in this calendar. We provide you with this feature as a convenience only, but we cannot guarantee that this feature will work accurately in all cases and/or at all times. We are not responsible or liable for any damages caused by your reliance on this feature, use of this feature and/or inability to use this feature. Reminder information is highly confidential and will not be shared with third parties.
Contests and Sweepstakes
Before using any of our mobile applications (“App”), we may ask you to install a valid copy of the App on your mobile device, install any mobile software applications on your mobile device and create an account, input your account information into the App as requested, register for an account; and meet certain hardware and connection requirements which may change as the App evolves. You are responsible for any internet connection fees and/or mobile carrier charges that you incur when accessing or using the App. Should you uninstall the App from your mobile device, you may not be able to use all or some of the features of the App. We use reasonable efforts to accurately display the attributes of photographs that you order through the App, including the colors of those photographs, however, the actual color you see is dependent upon your mobile device, and we cannot guarantee that your mobile device will accurately display such colors
Web Addresses (URLs)
As part of our Share Sites, we may provide you with access to and use of certain personalized pages and the corresponding web addresses (URLs) you choose. However, we do not guarantee the availability of any particular web page or URL, and we reserve the right, at any time and in our sole discretion, to reclaim, suspend, terminate and/or transfer any such web page or URL. In such cases, we may, at our option, provide you with another web page and URL.
Third-Party Websites, Software and Services
Other web sites may provide links to Shutterfly with or without our authorization. We do not endorse such sites, and are not and shall not be responsible or liable for any links from those sites to Shutterfly, any content, advertising, products or other materials available on or through such other sites, or any loss or damages incurred in connection therewith.
YOU AGREE THAT YOUR USE OF THIRD PARTY WEB SITES AND RESOURCES, INCLUDING WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEB SITES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.
We shall have the right, at any time and in our sole discretion, to block links to Shutterfly through technological or other means without prior notice.
Materials Submitted by Customer
Any materials submitted by you, including (without limitation) photographs, images, text, graphics and other materials (collectively, "User Submitted Materials") are subject to the following terms and conditions:
- You will retain ownership of such User Submitted Materials, and you grant Shutterfly and its designees a worldwide, non-exclusive, transferable, royalty-free, perpetual irrevocable right and license, with right of sublicense (through multiple tiers), to use, reproduce, distribute (through multiple tiers), create derivative works of and publicly display such User Submitted Materials solely in connection with the provision or production of any product or service you request. We use User Submitted Materials only in connection with products or services we provide that you request, and for no other reason. For example, when you place an order for a product, we will prepare, manipulate (if necessary), and transmit the User Submitted Materials for production, packaging and shipment. Similarly, if you want to share a photobook with your friends and family, Shutterfly will accommodate your request by making available your photos to your friends and family to download and/or to use and create projects of their own, and to purchase products with those photos.
- Please note that, while you retain ownership of your User Submitted Materials, any template or layout in which you arrange or organize such User Submitted Materials through tools and features made available through Shutterfly are not proprietary to you, and such template or layout shall be the sole and exclusive property of Shutterfly.
- You represent and warrant that you own or otherwise possess all necessary rights with respect to the User Submitted Materials, and that the User Submitted Materials do not and will not infringe, misappropriate, use or disclose without authorization or otherwise violate any copyright, trade secret right or other intellectual property or property right of any third party, and that the User Submitted Materials are not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable.
- You consent to the use of your likeness, and you have obtained the written consent, release, and/or permission of every identifiable individual who appears in User Submitted Materials to use such individual's likeness, for purposes of using and otherwise exploiting the User Submitted Materials in the manner contemplated by these Terms, or, if any such identifiable individual is under the age of eighteen (18), you have obtained such written consent, release and/or permission from such individual's parent or guardian (and you agree to provide to Shutterfly a copy of any such consents, releases and/or permissions upon Shutterfly’s request). If you do submit a Submission that contains the likeness of an identifiable individual is under the age of eighteen (18), we strongly encourage you not to include any identifying information (such as the individual's name or address) with such User Submitted Materials.
- You agree that we may (but are not obligated to) filter any User Submitted Materials (including, without limitation, deleting or replacing expletives or other harmful or offensive language), alter or refuse to use any User Submitted Materials (including, without limitation, suspended processing and shipping of any order relating to any User Submitted Materials) and/or disclose any User Submitted Materials and the circumstances surrounding the use thereof, to any third party in order to provide the applicable products or services, to protect ourselves or our affiliates, distributors, partners, licensors or other third parties, to comply with legal obligations or governmental requests.
- Please note that some of our Sites have an automated method of reporting User Submitted Materials that they believe to be inappropriate. If we do provide such a method, User Submitted Materials that are reported more than a certain number of times may be automatically removed from our Sites; provided, however, that Shutterfly has no obligation to remove User Submitted Materials in response to user reports or requests. Shutterfly is not responsible for, and will have no liability for, the removal or non-removal of any User Submitted Materials from our Sites. We recommend you keep back-up copies of your User Submitted Materials on your hard drive or other personal system.
While we aren’t obligated to review User Submitted Materials for copyright infringement, Shutterfly is committed to protecting copyrights and expects users of the Sites to do the same. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that any material used or displayed on or through the Sites infringes your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on the Sites; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.copyright.gov/ for details. DMCA notices and counter-notices regarding Shutterfly should be sent to:
2800 Bridge Parkway
Redwood City, CA 94065
We may permit you to share your User Submitted Materials with other users, including but not limited to our user comment functionality, online image share feature and our public gallery, user forums and blogs (collectively, "Forums"). Some Forum participants may use anonymous screen names and may have no other connection with Shutterfly or any of its brands. A large volume of material is available in our Forums and Forum participants may occasionally post messages or make statements, whether intentionally or unintentionally, that are inaccurate, misleading or deceptive, and provide content that may be objectionable to you. We neither endorse nor are responsible for such messages, statements, or content, or any opinion, advice, information or other utterance made or displayed by third parties, whether such third parties are users of our website or others. The opinions expressed in the Forums reflect solely the opinions of the participants and may not reflect the opinions of Shutterfly or any of its brands. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages or for any results obtained from the use of such information. Under no circumstances will Shutterfly, any of our affiliates, distributors, partners, licensors, advertisers or sponsors, and/or any of our or their directors, officers, employees, consultants, agents or other representatives be liable for any loss or damage caused by your reliance on such information obtained through our website. We may, but have no obligation to, monitor the Forums and any materials displayed, transmitted or otherwise made available on or through the Forums or otherwise through our website.
Some features of our website enable you to send and receive transmissions. You acknowledge and agree that Shutterfly has no responsibility or liability for any transmissions, and/or any content included in such transmissions, sent or received by you. Shutterfly reserves the right, in its sole discretion and at any time, to set limits on the number and size of any transmissions sent by or received through our website and/or the amount of storage space available for transmissions or for any feature made available through our website.
Disclaimer of Warranties
EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THESE TERMS, THE PRODUCTS AND SERVICES, INCLUDING ALL MATERIALS INCORPORATED THEREIN, ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, SHUTTERFLY, AND THEIR AFFILIATES, DISTRIBUTORS, PARTNERS, LICENSORS, ADVERTISERS, SPONSORS AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NOTE: APPLICABLE LAW MAY NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. NO STATEMENT OF SHUTTERFLY OR ANY OF ITS EMPLOYEES, AGENTS, REPRESENTATIVES, DISTRIBUTORS OR OTHER THIRD PARTIES, SHALL CREATE ANY WARRANTY OTHER THAN THOSE EXPRESSLY CONTAINED IN THESE TERMS.
Limitation of Liability
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER SHUTTERFLY NOR ANY OF THEIR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES, DISTRIBUTORS OR PARTNERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR LOSS OF DATA), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE PROVISION OF PRODUCTS OR SERVICES. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH SERVICES IS TO STOP USING THE SERVICES, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH PRODUCTS IS TO OBTAIN A REFUND THEREFORE IN ACCORDANCE WITH THESE TERMS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF SHUTTERFLY ARISING OUT OR IN CONNECTION WITH THE PROVISION OF OR FAILURE TO PROVIDE ANY PRODUCTS OR SERVICES SHALL BE THE ACTUAL PRICE PAID THEREFORE BY YOU. NOTE: SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Policy for Idea Submission
Many of our customers are interested in submitting ideas and suggestions for products and services to be used at Shutterfly and/or any of our brands, either independently of, or in conjunction with, our internally developed concepts. We appreciate our customers' interest in improving the Sites; however, please note that any such ideas or suggestions that you submit will be owned by Shutterfly, and you hereby irrevocably assign any intellectual property rights in such ideas and suggestions to Shutterfly. If you intend to retain any intellectual property rights in your ideas and suggestions (patent, trade secrets, copyright, trademark, etc.) please do not submit them to us without our prior written approval.
You can inquire regarding such approval by sending a letter to Shutterfly, Inc. 2800 Bridge Parkway, Redwood City, CA 94065 Attn: Idea Submission. If we are interested in pursuing any idea or suggestion of yours, we will contact you. Please note that an additional legal agreement may be required by Shutterfly in order to evaluate your idea or suggestion.
Notice for California Users
This notice is for our California users: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210
Intellectual Property Notices
Portions of the Service are covered by U.S. Patents 6,583,799; 6,583,852; 6,587,596; 6,646,754; 6,839,803; 6,941,276; 6,943,866; 6,973,222; 7,016,059; 7,016,869; 7,120,274; 7,269,800; 7,395,229; 7,467,222; 474,801; 7,576,752; 8,024,231; 8,024,233; 8,036,489; 8,065,196; and other issued US patents and pending US patent applications. The Service is ©1999-2012 Shutterfly, Inc. All rights reserved.
All trademarks and service marks on Shutterfly and any of our Sites not owned by us are the property of their respective owners. Shutterfly owns the following registered trademarks and logos: “Big Impressions”, “Magnolia Press”, “Make on Like This”, Tiny Prints’ elephant logo, “Nexo”, “Photoworks”, “Picture More”, “Postcards by Shutterfly”, “Shutterfly”, “Shutterfly Collections”, “Shutterfly Express”, “Shutterfly Studio”, “Shutterfly.com”, “Tell Your Story”, “Tiny Prints”, “Wedding Paper Divas”, “Wink”, “Your Pictures and More” and “Treat”. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on Shutterfly or any of our Sites should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.
Shutterfly and its brands are controlled and operated from the United States. Our Sites are not subject to the laws or jurisdiction of any state, country or territory other than that of the United States. Shutterfly does not represent or warrant that any of its Sites, products, and/or services or any part thereof is appropriate or available for use in any particular jurisdiction. Those who choose to access Shutterfly do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. We may limit Shutterfly’s availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
These Terms are governed by and construed in accordance with the laws of the State of California, United States of America, without regards to its principles of conflicts of law. You agree to submit to the exclusive jurisdiction of any State or Federal court located in the County of Santa Clara, California, United States of America, and waive any jurisdictional, venue or inconvenient forum objections to such courts. If any provision of these Terms, or the application thereof to any person, place or circumstance, shall be held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, such provision shall be enforced to the maximum extent possible, or, if incapable of such enforcement, shall be deemed to be deleted from these Terms, and the remainder of these Terms and such provisions as applied to other persons, places and circumstances shall remain in full force and effect. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy. This is the entire agreement between us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between us with respect to such subject matter. These Terms are not assignable, transferable or sublicenseable by you except with our prior written consent. These Terms may not be modified or amended except as set forth in the introductory section of these Terms. Any heading, caption or section title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
If you have any questions or comments regarding these Terms, please contact:
Either you or Shutterfly may terminate your access to the Sites and to your account at any time, with or without cause, and with or without prior notice. Upon termination for any reason, your right to access and/or use the Sites will immediately cease. Upon termination, you will have no further access to any information, files or materials related to your account, including, without limitation, any User Submitted Materials. Upon termination, Shutterfly may delete all information, files and materials related to your account, including any User Submitted Materials, and you agree that Shutterfly shall have no liability whatsoever to you or any third party as a result of a termination of your rights of access to your account and/or the deletion of any information, files or materials related to your account. In addition, Shutterfly shall have no obligation whatsoever to make any such information, files or materials available to you following a termination of your rights of access to your account.
TREATTM DISCOUNT PLAN – TERMS AND CONDITIONS
TreatTM Discount Plan
The Treat Discount Plan (the "Treat Card Club ") is designed to offer customers a discount on Treat product for a period of one year. With the purchase of a membership to the Treat Card Club, members are entitled to the discounts and benefits outlined below subject to the requirements and limitations of these terms and conditions ("Terms").
Membership in the Treat Card Club offers Club members a discount off the regular price on a specified number of Treat cards ordered from www.treat.com during the term of their membership in the Treat Card Club, subject to the requirements of the Treat Card Club. With the 6 card plan, you can save a total of $6; with the 12 card plan you can save a total of $15; and with the 18 card plan you can save a total of $27 off the current retail price (excluding discounts).
Risk Free Trial
We offer a risk free trial period for the Treat Card Club. If you are not satisfied with your first card as purchased under the Treat Card Club, you can cancel your membership in the Treat Card Club. Just send an email to firstname.lastname@example.org saying you want to cancel your membership in the Treat Card Club. Once we receive your notice, we will refund the purchase price of your Treat Card Club membership. If you have sent more than one card, you cannot cancel your membership and you will not be eligible to receive a refund.
The discount only applies to the purchase of Treat custom greeting cards. The value of your membership cannot be transferred to other Shutterfly products, shipping/handling charges, or any applicable taxes. You are responsible for postage and shipping charges as well as any applicable taxes. The Treat Card Club is only valid when orders are shipped to a customer specified location.
This Treat Card Club is not available for customers who purchase products for business or institutional use or for the purpose of resale.
You must have a current Treat account in order to join the Treat Card Club. Shutterfly reserves the right to accept or reject your membership in the Treat Card Club in its sole discretion. You may not transfer or assign your membership in the Treat Card Club, allow third parties to use your membership in the Treat Card Club, or use your Treat Card Club membership to ship cards on behalf of third parties. Benefits of the Treat Card Club may not be combined with any other offers or discounts available through www.treat.com or co-branded sites operated by us.
By subscribing to the Treat Card Club, you agree to pay the fee identified at the time you subscribe. This fee is non-refundable except as described under “Risk Free Trial,” and is subject to the cancellation rights set forth below. Taxes may apply to your subscription and you agree to pay any such taxes as a condition of you membership.
Cancellation in a Renewal Period
If you renew your membership, you may cancel your membership in the Treat Card Club within thirty (30) days after your renewal if you have not yet placed any orders in that renewal period . If you cancel your membership within the 30 days of the start of your renewal period, we will refund your full membership fee and any applicable taxes. This cancellation policy applies to the Treat Card Club and supersedes any conflicting or different cancellation policies available for other services or programs offered by us.
Changes to Terms
Shutterfly may, in its sole discretion and without notice, modify the terms and conditions of the Treat Card Club.. You agree that it is your sole responsibility to review updated terms and conditions of the Treat Card Club posted by us at www.treat.com. If any such change is found to be unenforceable, void, invalid, it is severable and does not affect the validity and enforceability of any remaining changes or conditions. YOUR CONTINUED PARTICIPATION IN THE PROGRAM CONSTITUTES YOUR ACCEPTANCE OF ANY SUCH CHANGES. IF YOU DO NOT AGREE TO ANY SUCH CHANGES, YOU MUST CANCEL YOUR PROGRAM MEMBERSHIP.
Termination by Us
Shutterfly may terminate your membership in the Card Club if you violate the Terms or any applicable law, terms and conditions of any services offered by us, or if your use of our services or the Plan is determined, in our discretion, to involve fraud or misuse. Failure to enforce any termination rights for any conduct shall not be deemed a waiver of any of our termination rights.
You agree to indemnify, defend and hold us, our officers, directors, employees, agents, licensors, suppliers and any third-party information providers harmless from and against all claims, liabilities, losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of these Terms, or any activity related to access to or use of your account (including negligent or wrongful conduct) by you or any other person accessing the Plan through your membership.
THE PROGRAM AND SHIPMENTS MADE THEREUNDER ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT OUR SITE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. WE MAKE NO WARRANTY REGARDING ANY SOFTWARE, GOODS, SERVICES, SPECIAL OFFERS, OR THE DELIVERY, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS OR RELIABILITY OF ANY SOFTWARE, GOODS OR SERVICES, PURCHASED, ACCESSED OR OBTAINED THROUGH TREAT'S SITE OR ADVERTISED THROUGH TREAT'S SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR THROUGH THE SITE OR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THAT RESULT FROM YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, TREAT'S SITE OR SERVICES, FROM ANY CHANGES TO THE SITE OR ITS SERVICES, OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR SUBMISSIONS OR DATA, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT WE ARE NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, WE WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THE SITE OR THROUGH THE SERVICE. YOU AGREE THAT OUR AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE SITE OR SERVICE IS LIMITED TO THE AMOUNTS YOU HAVE PAID TO US FOR ACCESS TO AND USE OF THE SITE OR SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Force Majeure. With the exception of the obligation to pay monies due and owing, each party hereto shall be excused from performance hereunder for any period and to the extent that such party is prevented from performing any obligations pursuant hereto, in whole or in part, as a result of delays caused by the other party or an act of God, war, civil disturbance, court order, governmental action, laws, orders, regulations, directions or requests, or as a result of events such as acts of public enemies, earthquakes, fires, floods, strikes or other labor disturbances of the other party or any third party, or other cause beyond its reasonable control and which it could not have prevented by reasonable precautions, and such nonperformance shall not be a default hereunder or a ground for termination hereof.
Governing Law. The validity of this Agreement, the construction and enforcement of its terms, and the interpretation of the rights and duties of the parties shall be governed by the internal substantive laws of the State of California applicable to agreements to be made and to be performed solely within California, without giving effect to any conflicts or choice of laws principles that otherwise might be applicable and excluding the United Nations Convention on Contracts for the Sale of Goods.
Venue. All disputes arising from or related to this Agreement shall be litigated in the Northern District of California if in federal court, or in San Mateo County, California if in state court. Each party hereby waives any right that it might otherwise have to object to such venue or seek dismissal of the action on the basis of forum non conveniens.
No Waiver. No delay or omission by either party hereto to exercise any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the covenants, conditions, or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
Severability. If any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.