THESE TERMS OF SERVICE (“AGREEMENT”) ARE A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “CUSTOMER”) AND xms (“WE” OR “xms”).  THIS AGREEMENT STATES THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE AND THE PRODUCTS SOLD ON IT AND MEMBERSHIPS SOLD TO IT. BY ACCESSING AND USING THE SITE, YOU ARE INDICATING THAT YOU ACCEPT, AND AGREE TO COMPLY WITH, THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU ARE NOT PERMITTED TO, AND YOU MUST NOT, ACCESS OR USE THE SITE OR PURCHASE PRODUCTS FROM, OR MEMBERSHIPS TO, THE SITE.

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By signing up for a Membership (as defined below), you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old, that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to enter into this Agreement. If you are a parent or legal guardian who is registering for a child, you hereby agree to bind your child to this Agreement and to fully indemnify and hold harmless xm if your child breaches or disaffirms any term or condition of this Agreement.

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1 – CHANGES TO TERMS; PERSONAL INFORMATION/PRIVACY

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1.1 – Changes to the site

xms may add to, change or remove any part of the Site, including, without limitation, any Content (as defined below) therein, at any time without prior notice to you.

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1.2 – Personal Information/Privacy

Customers agree to provide accurate, current, and complete information as required for the purchase of the Products and Memberships (both as defined below in Section 3.1). xms reserves the right to block further sales to Customers who provide false, inaccurate or incomplete data. Customer acknowledges that xms uses a third party payment processing service to processing orders and bill fees to your credit card. xms’s Privacy Policy, located at the URL: http://www.photosinthemail.com/privacy-policy (the “Privacy Policy”), explains how Customers’ personally identifiable information is collected, used and disclosed. You hereby agree that we may use your personal information in accordance with the terms of the Privacy Policy.

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2 – PASSWORDS; USE OF SITE

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2.1 – Passwords

You are responsible for maintaining the confidentiality of your passwords, and you are responsible for all activities that occur using your passwords. You agree not to share your passwords, let anyone else access your passwords or do anything else that might jeopardize the security of your passwords. You agree to notify xms if there is any unauthorized use of your password on this Site or if you know of any other breach of security in relation to this Site.

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3 – TERMS OF SALE

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3.1 - Sales of Products and Memberships to End Users Only

xms sells prints of pictures (the “Product(s)”) from the Site to end-user customers who purchase monthly memberships to receive the Products (“Membership(s)”) only for their own personal, non-commercial use. You may not purchase Products or Memberships for further distribution or resale or for any other commercial or business purpose. The Membership and all rights and privileges conferred are personal and non-transferable.

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3.2 - Pricing

Pricing for Products and Memberships (including any applicable shipping and handling fees) can be found on xms’s then-current pricing page located on the Site at: http://www.photosinthemail.com. The price that we will charge you for the Products and Memberships will be the price as posted on the Site on the date you first sign-up for a Membership to the Site. xms reserves the right to change prices for Products and Memberships at any time, and does not provide price protection or refunds in the event of promotions or price decreases.

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3.3 – Refund/Cancellation Policy

If you are dissatisfied with the Product for any reason, xms will refund the amount paid for your most recent month of service. Refund requests must be made directly to xms at shutterbug@photosinthemail.com.  All refund requests must be made within thirty (30) days of the date of shipment by xms. xms is not liable for products that are damaged or lost in transit to xms.

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Promptly following xms’s receipt of your request (typically within five (5) business days), xms will credit the amount paid for the returned product (less any shipping and handling costs/fees related to the original purchase, which are non-refundable) to the credit card you used to make the original purchase. Notwithstanding the foregoing, xms does not control when a specific credit card company processes a chargeback transaction. You are responsible for contacting your credit card company if you have questions about the status of the chargeback.

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xms will not provide a refund for a request that is received by xms more than thirty (30) days after the date of original shipment. xms also does not provide a refund for returned products that are damaged due to misuse, lack of care, mishandling, accident, abuse or other abnormal use.

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3.4 – Payment Methods; Automatic Membership Renewals and Membership Cancellation Policy

xms accepts credit card payments only. You agree to pay all fees charged to your account based on xms’s fees, charges, and billing terms in effect as shown on the payment page you first sign-up for a Membership to the Site. You are also responsible for paying any sales and use taxes and shipping and handling fees that may apply to your purchase of Products or Memberships based on the address that you provide as the shipping address when you register for a Membership, and you authorize xms or the third party payment processing service provider that we engage to charge your credit card for any such taxes and fees. All payments shall be made by credit card in advance prior to shipping the Products. If you do not pay on time or if your credit card cannot be charged for any reason, xms reserves the right to either suspend or terminate your account and Membership and terminate these Terms of Service. All sales and payments will be in US Dollars.

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xms and xms's third party payment service provider may receive updated credit card information from your credit card issuer. The disbursement of the updated credit card information is provided to xms and xms's third party payment service provider at the election of your credit card issuer. Neither xms nor xms's third party payment service provider are responsible for the distribution of your credit card information. It is at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt out of the update service. It is Your responsibility to contact Your credit card issuer with regards to Your right to opt out of the update service.

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IMPORTANT NOTICE TO CONSUMER: xms will automatically renew your Membership on each monthly anniversary date of the Membership and, as authorized by You during the Membership sign-up process, will charge your credit card with the applicable Membership fee and any shipping and handling costs and sales or similar taxes that may be imposed on your Membership fee payments. Each Membership renewal period is for one month. You may cancel your Membership at any time by logging on to your account within photosinthemail.com. To cancel a membership, please login to your account on the Site and select the “cancellation” option on your account page.  All cancellation requests must be received by the first day of the month. Cancellation requests received after the first of the month shall take effect the following month. If you have any problems, please email shutterbug@photosinthemail.com. xms requires a reasonable amount of time to process your Membership cancellation request. If you cancel your Membership, you will enjoy your Membership benefits until the end of the then-current Membership term, and your Membership benefits will expire at the end of the then-current Membership term for which you have paid. You will not be eligible for a prorated refund of any portion of the Membership fees paid for any unused days of the then-current Membership term.

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3.5 – Shipping and Product Acceptance

The shipment date will be determined according to your registration date.  Your first shipment will be delivered approximately 42 days after your registration date.  After you first shipment, you will receive monthly shipments 12 days after your monthly anniversary date.  Shipping dates are estimates only. All shipments are sent Priority Mail or First-Class mail via the US Postal Service. The risk of loss and title for all Products purchased via the Site pass to the Customer upon delivery of the item to the carrier.

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3.6 – What if pictures are below the number of selected package are no pictures are submitted for a month?

xms will only print, pack, and ship that are sent to them via email between the “SMILE” dates which are designated upon registration.  For example, if a subscriber selects the $ 5 per month option for 15 pictures, and they only email 10 pictures, then only 10 pictures will be sent to the subscriber for that particular month.  There will not be any carryover to the following month.  If xms does not receive any pictures between the “SMILE” dates which are designated upon registration, then a package will not be sent to the subscriber for that particular month but charges will still be applied to the subscribers credit card.

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4 – PROPRIETARY RIGHTS

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You hereby acknowledge and agree that xms or its licensors own all legal right, title and interest in and to the Site and Content, including, without limitation, any and all intellectual property and other proprietary rights which subsist in the Site and Content, whether such rights are registered or unregistered, and wherever in the world those rights may exist.

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xms is a trademark of xms in the United States. Other trademarks, names and logos on this Site are the property of their respective owners. Unless otherwise specified in this Agreement, all information and screens appearing on this Site, including Content, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of xms, Copyright © 2014 xms.  All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.

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5 – DISCLAIMER OF WARRANTIES

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THE SITE, CONTENT, PRODUCTS AND MEMBERSHIPS ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. xms, ON BEHALF OF ITSELF AND ITS AFFILIATES, LICENSORS, SUPPLIERS AND THIRD PARTY SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “xms PARTIES”): (A) EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT REPRESENT OR WARRANT THAT THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SITE OR CONTENT WILL BE TIMELY, UNINTERRUPTED, STABLE, OR SECURE; (C) DOES NOT REPRESENT OR WARRANT THAT THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (D) DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OF THE USE OF THE SITE, CONTENT OR PRODUCTS IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOUR USE OF THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS IS ENTIRELY AT YOUR OWN DISCRETION AND RISK AND YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE, CONTENT, PRODUCTS AND MEMBERSHIPS.

THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND xms. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY xms OR ANY PERSON ON BEHALF OF xms SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.

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NOTHING IN THIS SECTION 5 SHALL EXCLUDE OR LIMIT THE xms PARTIES’ WARRANTIES, REPRESENTATIONS OR CONDITIONS TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES, REPRESENTATIONS OR CONDITIONS WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

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6 – LIMITATION OF LIABILITY

 

IN NO EVENT SHALL ANY xms PARTY BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE, LOSS OF VALUE OF THE PRODUCTS OR LOSS OF USE OF THE PRODUCTS, WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF A xms PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

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6.1 –

IF, NOTWITHSTANDING THE FOREGOING, A xms PARTY IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS, THE RELEVANT xms PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID xms FOR THE PRODUCTS OR MEMBERSHIP, AS APPLICABLE; AND (B) THE SUM OF ONE HUNDRED US DOLLARS (US$100).

 

 

6.2 –

NOTHING IN THIS SECTION 6 SHALL EXCLUDE OR LIMIT ANY xms PARTY’S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH xms PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

 

7 – DISPUTE AND ARBITRATION; CLASS ACTION WAIVER; CHOICE OF LAW

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7.1 – Dispute and Arbitration; Class Action Waiver

Please read this carefully. It affects your rights.

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Summary:

Most customer concerns can be resolved quickly and to a customer’s satisfaction by writing to our customer service department at shutterbug@photosinthemail.com or xms, Attn: Customer Service, 39 West Bridge Street, Dublin, OH  43017.  In the unlikely event that our customer service department is unable to resolve a complaint you may have to your satisfaction (or if we have not been able to resolve a dispute we have with you after attempting to do so informally), we each agree to resolve those disputes ARISING OUT OF THIS AGREEMENT (OTHER THAN THOSE RELATED TO xms’S ENFORCEMENT AND PROTECTION OF ITS NAME AND INTELLECTUAL PROPERTY RIGHTS) through binding arbitration or small claims court instead of in courts of general jurisdiction. This includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third party vendors) whenever you also assert claims against us in the same proceeding.

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Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. The arbitrator must follow this Agreement and can award the same damages and relief that a court can award.

We each also agree that this Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law apply (despite the choice of law provision in Section below). ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Neither you nor xms has the right to act as a class representative or class representative or participate as a member of a class of claimants with respect to any claim.

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All disputes relating in any way, directly or indirectly, to xms for breach of contract, breach of fiduciary duty, negligence, personal injury, intentional torts or other tort will be arbitrated according to an arbitrator selected by xms, including any dispute about the scope of this arbitration agreement, and including all questions about the types of disputes that are subject to this arbitration agreement, all of which you agree will be decided by the arbitrators, whose decision will be final and binding on you. Any issue concerning the extent to which a dispute is subject to arbitration, or concerning the applicability, interpretation or enforceability of this Agreement, including any contention that all or part of this agreement is invalid or unenforceable, shall be governed by the Federal Arbitration Act and resolved by the arbitrators. You acknowledge and agree that, in any arbitration proceeding, no depositions will be taken, and all other forms of discovery of facts will be limited to those things that the arbitrators determine, in their sole discretion, to be necessary. Further, in any arbitration proceeding, (i) there shall be no award of punitive, exemplary, incidental or consequential or other special damages, (ii) all damages claims and awards will be governed by the provisions of the Ohio Civil Code, and (iii) the parties will conduct the arbitration confidentially and expeditiously and will pay their own costs and expenses of arbitration, including their own attorneys’ fees. If you are unable to afford the arbitration fee, you agree to notify all persons against whom you have an arbitrable claim and give such persons the opportunity individually and as a group to pay such fee. The proceeding and the decision shall be kept confidential by the parties.

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7.2 – Choice of Law

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This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of Ohio, without regard to its conflicts of laws rules. Foreign laws do not apply. Arbitration or court proceedings must be in Ohio. If any provision of the Agreement is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement.

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8 – ELECTRONIC COMMUNICATIONS; GENERAL TERMS

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8.1 – Electronic Communications

Whenever you visit our Site or send emails to us, you are communicating with us electronically. For that reason, you also consent to receive communications from us electronically. We will communicate with you by email (if you have provided your email address to us), by posting notices on our Site or by such other means as we may determine from time-to-time. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law.

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8.2 – General Terms

xms may issue a warning, temporarily suspend, indefinitely suspend or terminate any Customer’s right to use or access all or any part of the Site including any account thereon, without notice, for any reason in xms’s sole discretion, including without limitation breach of this agreement and/or violation of the Terms of Service, xms’s belief that such access would violate any applicable law, rule or regulation or would be harmful to the interests of, or potentially cause financial loss or legal liability to xms or another user of the Site. This Agreement and the Privacy Policy constitute the entire agreement between you and xms regarding its subject matter. xms will not be responsible for failures to fulfill any of its obligations due to causes beyond its control. The failure of xms to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any part of this Agreement is held invalid, illegal or unenforceable, that provision shall be enforced to the maximum extent permissible so as to maintain the intent of this Agreement, and the other parts will remain in full force and effect. The parties shall at all times and for all purposes be deemed to be independent contractors and neither party nor its agents may bind the other party. This Agreement is only valid in the English language. This Agreement shall not be interpreted or construed to confer any rights or remedies on any third parties, except that each indemnified xms Party shall be a third party beneficiary hereunder. xms may assign or transfer its rights, or delegate any performance, under this Agreement to a third party in its sole discretion. Customer may not assign or otherwise transfer its rights, or delegate its performance, under this Agreement to any third party without in each and every case, xms’s express prior written consent. All terms which by their nature are intended to survive any termination of this Agreement, or any termination of your use of the Site, Content, Products or Memberships shall survive such termination.