Terms of Site Usage

TERMS OF SITE USAGE


YOUR ACCEPTANCE OF THESE TERMS OF USE

These Terms of Use apply to all users of this Site. By using this Site, you are agreeing to comply with and be bound by these Terms of Use with Dawna Moore Photography (“Site”). If you do not agree to these Terms of Use, you may not access or use this Site.


YOUR ACCEPTANCE OF OUR PRIVACY POLICY

By agreeing to these Terms of Use, you agree to the terms of our Privacy Policy, which is expressly incorporated herein. Before using this Site, please carefully review our Privacy Policy. All information provided to us as a result of your use of this Site will be handled in accordance with our Privacy Policy. In consideration of your use of this Site, you agree that to the extent you provide personal information to the Site it will be true, accurate, current, and complete and that you will update all personal information as necessary.  To the extent there are inconsistencies between these Terms of Use and our Privacy Policy, these Terms of Use control.


OWNERSHIP OF THIS SITE AND ITS CONTENT

The Site owns all intellectual property rights in (a) all text, logo, images, headers, trademarks, service marks, design elements, and all other protected elements on the Sites (except those licensed from others); (b) all things otherwise provided to you as a part of the Site’s services, and; (c) any other intellectual property rights afforded to the Site, either through state or federal registration or as otherwise available at common law (“Intellectual Property”). Except as stated within, the Site does not grant you any rights to any Intellectual Property that may be available to you generally through the Site. You agree not to make unauthorized use of or otherwise infringe upon the Site’s Intellectual Property in anyway and understand that it is your responsibility to ensure you refrain from doing so.


THIRD-PARTY GENERATED CONTENT

The Site contains content generated from third-parties, including but not limited to comments and we do not guarantee the accuracy, integrity, or quality of third-party generated content.  The Site does not endorse and is not responsible for statements, advice and opinions made by anyone other than authorized Site spokespersons.

DISCLAIMERS

WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIS SITE OR ITS CONTENT, OR ANY PRODUCT OR SERVICE AVAILABLE ON OR PROMOTED THROUGH THIS SITE. THIS SITE AND ALL OF ITS CONTENT (INCLUDING USER-GENERATED CONTENT) ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, THE SITE, ITS FRANCHISES AND AFFILIATES, AND THEIR SERVICE PROVIDERS AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING BY STATUTE, CUSTOM, COURSE OF DEALING, COURSE OF PERFORMANCE OR IN ANY OTHER WAY, WITH RESPECT TO THIS SITE, ITS CONTENT, AND ANY PRODUCTS OR SERVICES AVAILABLE OR PROMOTED THROUGH THIS SITE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SITE, ITS AFFILIATES, AND THEIR SERVICE PROVIDERS AND LICENSORS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES (A) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (B) RELATING TO THE SECURITY OF THIS SITE; (C) THAT THE CONTENT OF THIS SITE IS ACCURATE, COMPLETE OR CURRENT; OR (D) THAT THIS SITE WILL OPERATE SECURELY OR WITHOUT INTERRUPTION OR ERROR.

WE DO NOT REPRESENT OR WARRANT THAT THIS SITE, ITS SERVERS, OR ANY TRANSMISSIONS SENT FROM US OR THROUGH THIS SITE WILL BE FREE OF ANY HARMFUL COMPONENTS (INCLUDING VIRUSES).

WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR ANY STATEMENTS, ADVICE OR OPINIONS CONTAINED IN USER-GENERATED CONTENT AND SUCH STATEMENTS, ADVICE AND OPINIONS DO NOT IN ANY WAY REFLECT THE STATEMENTS, ADVICE AND OPINIONS OF THE SITE. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS, OR OTHER DATA. YOU ACCEPT THAT OUR SHAREHOLDERS, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES AND OTHER REPRESENTATIVES SHALL HAVE THE BENEFIT OF THIS CLAUSE.

APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF CERTAIN WARRANTIES, SO ALL OR PART OF THIS DISCLAIMER OF WARRANTIES MAY NOT APPLY TO YOU.

LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS WE, ON BEHALF OF OUR DIRECTORS, OFFICERS, FRANCHISEES, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS AND SERVICE PROVIDERS, EXCLUDE AND DISCLAIM LIABILITY FOR ANY LOSSES AND EXPENSES OF WHATEVER NATURE AND HOWSOEVER ARISING INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, GENERAL, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES; LOSS OF USE; LOSS OF DATA; LOSS CAUSED BY A VIRUS; LOSS OF INCOME OR PROFIT; LOSS OF OR DAMAGE TO PROPERTY; CLAIMS OF THIRD PARTIES; OR OTHER LOSSES OF ANY KIND OR CHARACTER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS SITE. YOU ASSUME TOTAL RESPONSIBILITY FOR ESTABLISHING SUCH PROCEDURES FOR DATA BACK UP AND VIRUS CHECKING AS YOU CONSIDER NECESSARY. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER BASIS.

WAIVER

Our failure at any time to require performance of any provision of these Terms of Use or to exercise any right provided for herein will not be deemed a waiver of such provision or such right. All waivers must be in writing. Unless the written waiver contains an express statement to the contrary, no waiver by of any breach of any provision of these Terms of Use or of any right provided for herein will be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under these Terms of Use.

SEVERABILITY

If any provision of these Terms of Use is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms of Use will remain in full force and effect.

GOVERNING LAW, JURISDICTION AND VENUE

These Terms of Use and Privacy Policy will be governed under the laws of the State of Florida without regard to its conflicts of law provisions. All actions or proceedings arising out of or relating to these Terms of Use will be adjudicated exclusively in the state or federal court of competent jurisdiction for the County of Nassau. You hereby irrevocably consent and submit to the personal jurisdiction of said courts for all such purposes. Notwithstanding the foregoing, the Site may also bring legal proceedings in any jurisdiction where we believe that infringement of these Terms of Use is taking place or originating. If either party to this agreement brings a legal action against the other party to these Terms t to secure the specific performance of the Terms, collect damages for breach of this agreement, or otherwise enforce or interpret these Terms, the prevailing party will recover reasonable attorney’s fees and all costs, premiums for bonds, fees, and other expenses expended or incurred in the action in addition to any other relief that may be awarded.

INDEMNITY

You agree to indemnify, defend and hold harmless the Site from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of this Site in violation of these Terms of Use and/or arising from a breach of these Terms of Use and/or any breach of your representations and warranties set forth above and/or if any material that you post using this Site causes us to be liable to another.

THESE TERMS OF USE MAY CHANGE

These Terms of Use are current as of the effective date of use. The Site reserves the right to change these Terms of Use from time to time consistent with applicable laws and principles. These changes will be effective as of the date we post the revised version on this Site. Your continued use of this Site after we have posted the revised Terms of Use constitutes your agreement to be bound by the revised Terms of Use. If at any time you choose not to accept these Terms of Use, you should not use this Site.

ENTIRE AGREEMENT

These Terms of Use (together with our Privacy Policy and any Privacy Notices or click-through agreements applicable to you) contain the entire understanding and agreement between you and the Site with respect to this Site and supersede all previous communications, negotiations, and agreements, whether oral, written, or electronic, between you and the Site with respect to this Site and your use of this Site.

DEFINITIONS

The term “Content” refers to all of the software and code comprising or used to operate this Site, and all of the text, photographs, images, illustrations, graphics, sound recordings, video and audio-video clips, and other materials available on this Site.

The terms “Dawna Moore Photography,” “we,” “us,” and “our” refer to Dawna Moore Photography.

The term “including” means “including, but not limited to.”

The term “Site” refers to any website, application or service owned by Dawna Moore Photography on which these Terms are posted.

QUESTIONS

If you have any questions about this Site or these Terms of Site, please contact us using the following information: via email at dawna@dawnamoorephotography.com.

Please read these terms and conditions carefully. By using this website you indicate you agree to these terms and conditions. If you do not agree to these terms and conditions set out below please do not use this website.

PRINT LICENSE

By purchasing the selected photographs (the "Prints") you hereby agree and acknowledge that you are not acquiring any right, title or interest in or to the Print(s) or any associated copyrights, other than the right to possess, hold and use the Print(s) for non-commercial purposes. Furthermore, you agree that you will: (i) not scan, copy, duplicate or otherwise reproduce the Print(s), (ii) not use the Print for any commercial purpose, without the express written consent of the photographer and (iii) indemnify the photographer against any claims, losses or damages incurred as a result of or in connection with your breach of the foregoing restrictions.

You also hereby acknowledge that the Prints are being produced and manufactured by a third party chosen by the photographer.

For more information on refunds, returns, and exchanges, please visit my Frequently Asked Questions section.

RIGHTS-MANAGED IMAGE LICENSE AGREEMENT

THIS IS A LEGAL AGREEMENT BETWEEN THE LICENSEE (AS DEFINED BELOW) AND THE LICENSOR (AS DEFINED BELOW). THIS AGREEMENT APPLIES TO CERTAIN LICENSES ISSUED VIA THE DAWNAMOOREPHOTOGRAPHY.COM WEBSITE (THE "SITE"), AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOGUE (PHYSICAL) DELIVERY OF LICENSED MATERIAL (THE "AGREEMENT").

1. Definitions. In this Agreement the following definitions apply:

1.1 "Invoice" means the computer-generated or pre-printed invoice provided by or through the Site that may include, without limitation, names of the Licensor and Licensee, the permitted scope of use of the Licensed Material selected and the corresponding price for the license of such Licensed Material.

1.2 "Licensed Material" means any still image, film or video footage, audio product, visual representation generated optically, electronically, digitally or by any other means, including any negatives, transparencies, film imprints, prints, original digital files or any Reproductions thereof, or any other product protected by copyright, trademark, patent or other intellectual property right, which is licensed to Licensee by Licensor under the terms of this Agreement. Any reference in this Agreement to the Licensed Material shall be to each individual item within the Licensed Material and also to the Licensed Material taken as a whole.

1.3 "Licensee" means the person or entity set forth in the applicable Invoice as the "licensee" and receiving the rights to the Licensed Materials as specified hereunder.

1.4 "Licensor" means the person or entity set forth on the Invoice as the "licensor" and granting the rights to the Licensed Materials as specified hereunder.

1.5 "Reproduction" and "Reproduce" mean any form of duplication, copying or publication of any or all of the Licensed Material, via any medium and by whatever means, and/or the distortion or manipulation of the whole or any part of the Licensed Material and the creation of any derivative work from the Licensed Material.

2. Grant of Rights & Restrictions.

2.1 Subject to the terms and conditions contained herein, Licensor grants to Licensee a non-exclusive, non-assignable and non-sub licensable right to Reproduce the Licensed Material identified in the Invoice, solely to the extent explicitly stated in this Agreement. This right may be exercised by subcontractors of Licensee, provided that such subcontractors agree to abide by the terms of this Agreement.

2.2 Use of the Licensed Material is strictly limited to the use, medium, period of time, print run, placement, size of image, territory and any other restrictions specified in the Invoice. Licensee may utilize the Licensed Material in any production process that may be necessary for the intended use specified in the Invoice.

2.3 If any Licensed Material featuring a model is used in (i) a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service; or (ii) in connection with a subject that would be unflattering or controversial to a reasonable person, Licensee must accompany each such use with a statement that indicates that the person so pictured is a model and is used for illustrative purposes only.

2.4 Pornographic, defamatory or otherwise unlawful use of Licensed Material is strictly prohibited.

2.6 Licensed Material shall not be incorporated into a logo, trademark or service mark.

2.7 Licensed Material shall not be used contrary to any restriction on use that is notified to Licensee prior to or at the time the Licensed Material is delivered to Licensee. Such restrictions may be included in the information provided with the Licensed Material on the Site, in the Invoice, or in any other communication by the Licensor. Any such restriction provided to the Licensee shall be incorporated in this Agreement by reference.

2.8 Upon reasonable notice, Licensor may inspect any records, accounts and books relating to the Reproduction of any of the Licensed Material to ensure that the Licensed Material is being used in accordance with this Agreement.

3. Copyright. No ownership or copyright in any Licensed Material shall pass to Licensee by the issuance of the license contained in this Agreement. Except as expressly stated in this Agreement, Licensor grants Licensee no right or license, express or implied, to the Licensed Material.

4. Releases. Licensor will notify Licensee if it has obtained a model release and/or a property release for Licensed Material, either in the release status information accompanying the Licensed Material on the Site, in the Invoice or by other means. If no such notification is given, then no such model or property release has been obtained. Except where Licensee is specifically notified, Licensor grants no rights and makes no warranties with regard to the use of names, people, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Licensed Material. Where Licensed Material is unreleased, Licensee shall be solely responsible for determining whether a release is required in connection with any proposed use of such Licensed Material. Licensee acknowledges that some jurisdictions provide legal protection against a person's image, likeness or property being used for commercial purposes without their consent. Licensor makes no representations or warranties as to whether or not any additional fees or payments may be due to any model depicted in Licensed Material pursuant to the requirements of any applicable trade union and Licensee shall be solely responsible for any such additional fees or payments to such trade union.

5. Warranty and Limitation of Liability.

5.1 Licensor warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; (ii) the Licensed Material will be free from defects in material and workmanship for 30 days from delivery (Licensee's sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Material); and (iii) subject to Section 4 above (Releases), Licensee's use of the Licensed Material in its original form, and when used in accordance with this Agreement and the Invoice, will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity.

5.2 LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF LICENSEE'S USE OF THE LICENSED MATERIAL OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. LICENSOR'S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH LICENSEE'S USE OF OR INABILITY TO USE THE LICENSED MATERIAL (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL, TO THE EXTENT PERMITTED BY LAW, BE LIMITED TO THE VALUE OF 10 TIMES THE VALUE PAID BY THE LICENSEE FOR THE LICENSED MATERIAL.

5.3 THE REPRESENTATIONS AND WARRANTIES MADE BY LICENSOR IN THIS AGREEMENT APPLY ONLY TO THE LICENSED MATERIAL AS DELIVERED BY LICENSOR AND WILL BE INVALID IF THE LICENSED MATERIAL IS USED BY LICENSEE IN ANY MANNER NOT SPECIFICALLY AUTHORIZED IN THIS AGREEMENT OR IF LICENSEE IS OTHERWISE IN BREACH OF THIS AGREEMENT.

6. Indemnification.

6.1 Provided Licensed Material is only used in accordance with this Agreement and Licensee is not otherwise in breach of this Agreement, Licensor shall defend, indemnify and hold Licensee harmless from all damages, liabilities and expenses (including reasonable attorneys' fees and permitted and authorized costs), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that Licensor is in breach of its warranties given in section 5 above.

THE FOREGOING STATES LICENSOR'S ENTIRE INDEMNIFICATION OBLIGATION TO LICENSEE UNDER THIS AGREEMENT AND LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR ANY ALLEGED OR ACTUAL BREACH OF THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 5 ABOVE.

6.2 Where model or property releases for Licensed Material have not been obtained by Licensor, or if Licensee's use of the Licensed Material is not authorized by this Agreement, Licensee shall defend, indemnify and hold Licensor and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages, liabilities and expenses (including reasonable attorneys' fees and costs), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding relating to the use of such Licensed Material by Licensee, to the extent that such claim relates to the absence of a release or the Licensee's unauthorized use of the Licensed Material.

7. Notice of Defense. The party seeking indemnification pursuant to section 6 shall promptly notify the other party of such claim. At indemnifying party's option, indemnifying party may assume the handling, settlement or defense of any claim or litigation, in which event indemnified party shall cooperate in the defense thereof. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. The indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.

8. Parties' Obligation. Upon notice from Licensor, or upon Licensee's knowledge that any Licensed Material is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which Licensor may be liable herein, or if Licensor withdraws any Licensed Material for any good reason, Licensee will physically remove the Licensed Material from its premises, computer systems and storage (electronic or physical) and, if possible, cease any future use at its own expense. Licensor shall provide Licensee with comparable Licensed Material (which comparability will be determined by Licensor in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.

9. Electronic Storage. For all Licensed Material that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of Licensor and the image number or other identification number associated with the Licensed Material as may be included as part of the electronic file. Licensee may not make additional high-resolution copies of the Licensed Material and Licensee will maintain a robust firewall to safeguard against unauthorized third-party access to the Licensed Material. Notwithstanding the foregoing, Licensee may make one (1) high-resolution backup copy of the Licensed Material for security reasons only. Upon the expiration or earlier termination of this Agreement, Licensee shall promptly delete the Licensed Material from its computer or other electronic storage systems and shall ensure that its sub-contractors do likewise.

10. Interest. If Licensee fails to pay Licensor invoice in full within the time specified in the invoice, Licensor may add a service charge of one percent (1%) per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received. Licensor also reserves the right, in its sole discretion, to revoke the license if payment is not made in full on time.

12. Condition of Licensed Material. Licensee should examine all Licensed Material for possible defects (whether digital or otherwise) before sending any Licensed Material for Reproduction. Without prejudice to section 5.1.(ii) above, Licensor shall not be liable for any loss or damage suffered by Licensee or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Licensed Material or its caption or in any way from its Reproduction.

13. Credit Lines for Editorial Use. If any Licensed Material is Reproduced in an editorial manner, Licensor's name or such credit information, if any, set forth on such Invoice, must appear adjacent to the Licensed Material in the credit line accompanying the Licensed Material.

Dawna Moore - www.dawnamoorephotography.com

14. Miscellaneous Terms.

14.1 Unauthorized Use. Any use of Licensed Material in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling Licensor to exercise all rights and remedies available to it under copyright laws around the world. Licensee shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party.

14.2 Governing Law. This Agreement will be governed in all respects by the laws of the State of Florida, without reference to its laws relating to conflicts of law. Any disputes arising from this Agreement or its enforceability shall be settled by binding arbitration to be held in Florida. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement.

14.3 Severability. If one or more of the provisions contained in the Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them enforceable.

15.4 Waiver. No action of Licensor, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of Licensor in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by Licensor of any such rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of those rights or remedies on any other occasion.

14.5 Entire Agreement. This Agreement, including the Invoice, contains all the terms of the license agreement and no terms or conditions may be added or deleted unless made in writing and signed by an authorized representative of both parties. In the event of any inconsistency between the terms contained herein and the terms contained on the Invoice, any purchase order or other communication sent by Licensee, the terms of this Agreement shall govern.

 

TERMS OF USE    PRIVACY POLICY

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