Terms of Service

PhotoByFred.com is the Internet presence of Photo By Fred. For the purposes of this document, the two names are considered synonymous.

Please read the following terms and conditions of use (the "Terms of Service") which govern your use of Photo By Fred and your relationship with Photo By Fred, and all individuals and companies associated with this Web site (collectively referred to as "We" or "Us"). If you do not agree to these Terms of Service, do not use Photo By Fred. We may change the Terms of Service from time to time and at any time without notice to you, by posting such changes on this Web site. By using Photo By Fred following any modification of the Terms of Service, you agree to be bound by the changes to the Terms of Service.

Our Objective

Our primary objective at Photo By Fred is to make available photographs taken by Fred Koschara (and possibly others), for the enjoyment of the purchaser. We want to bring the greatest good to the largest group, while protecting the rights and interests of those whose investments of time, money or other resources are protected. The intent is to facilitate trade, to insure all involved are satisfied with the outcome. To achieve that goal, we require everyone who signs up with our service to agree to our Terms of Service.

Definitions

• PhotoByFred.com - this Web site, any business entity organized to operate and maintain it, and Photo By Fred in general (for the purposes of this document)
• (the) Public - anyone who accesses this site or its contents through the Internet or other commonly available communication channels
• Legal Guardian - a person at least eighteen (18) years of age who has the legal authority to enter into a contract on the behalf of a person less than eighteen (18) years of age
• Member - anyone, whether a person or business, who has obtained an account on our system accessed through a username and password
• Author - a Member who writes creative text (such as news articles, message board postings, etc.) made available to the public or Members through the site
• Additional Services - any enhanced services provided by Photo By Fred to its Members beyond the basic free offerings generally available on the site
• Subscriber - a Member who has purchased Additional Services in return for fee(s) paid, usually on a recurring basis
• External Entities - persons and businesses not having any contractual relationship with Photo By Fred, including, but not limited to, agents, managers, etc.

General Terms of Service

Photo By Fred is offered to you provided you accept without modification the terms, conditions, and notices contained herein.

Membership with Photo By Fred is provided to businesses, and to individuals who are at least 18 years old or minors (persons who are under 18 years of age) who have the permission of their Legal Guardian to open and maintain an account. Clicking an "I Accept" (or similarly worded) button at the bottom of the page where this Agreement is displayed, and/or completing the registration process, indicates that you are eligible for membership. Also, use of the restricted sections of Photo By Fred means you accept and agree to the Terms of Service.

You acknowledge and agree that you must: (a) provide for your own access to the Internet, including the World Wide Web, and pay any and all service fees associated with such access, and (b) provide all equipment necessary for you to make such connection to the Internet and the World Wide Web, including a computer, software, modem and working telephone line, cable modem, or other network connection.

By using Photo By Fred, including any content contained therein, you agree that use of Photo By Fred is entirely at your own risk. In general, Photo By Fred is provided to you as a convenience as for accessing information about, and the opportunity to display on one computer, the photographs we offer. Although we strive to insure we are providing the highest quality product possible, we cannot guarantee the accuracy or completeness of the services or information.

PHOTO BY FRED IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, SERVICES, SECURITY, OR UNINTERRUPTED ACCESS. SPECIFICALLY, PHOTO BY FRED DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (i) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, OR CONTENT OF PHOTO BY FRED OR INFORMATION; AND (ii) ANY WARRANTIES OF TITLE, WARRANTY OF NON-INFRINGEMENT, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.

We reserve the right to change any information or service on this Web site, including but not limited to revising and/or deleting features or other information without prior notice to you. It is your responsibility to check this page periodically to review any changes to these Terms of Service.

Accessing external links found on this Web site will provide you with access to other Web sites. Photo By Fred assumes no responsibility of any kind for the content, availability or other features of any such sites. (See "Links from and to Photo By Fred" below.)

The content and appearance of this Web site may vary depending on the limitations and functionality of your browser software.

User Conduct On PhotoByFred.com

As a condition of your use of Photo By Fred, you warrant that you will not use Photo By Fred for any purpose that is unlawful, immoral, or prohibited by these terms, conditions, and notices. You agree to abide by all applicable local, state, national and international laws and regulations, and are solely responsible for all acts or omissions that occur under your account or with your password access, including the content of your transmissions through Photo By Fred. By way of example, and not as a limitation, you agree not to:

• transmit or upload any material that contains software or other material protected by intellectual property laws, rights of privacy or publicity or any other applicable law unless you own or control the rights thereto or have received all necessary consents;
• upload, post, publish, transmit, reproduce, or distribute in any way, information, software or other material obtained through Photo By Fred which is protected by copyright, or other proprietary or intellectual property right, or derivative works with respect thereto, without obtaining permission of the copyright owner or rightholder;
• upload, post, publish, reproduce, transmit or distribute in any way any component of Photo By Fred itself or derivative works with respect thereto, since Photo By Fred is copyrighted as a collective work under U.S. copyright laws and may be covered under one or more patents pending;
• harvest or otherwise collect information about others, including email addresses, without their consent;
• upload, post, publish or transmit any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute illegal activity, give rise to civil liability, or otherwise violate any local, state, national or foreign law, including without limitation the U.S. export laws and regulations;
• defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
• upload, post, publish, transmit, reproduce, distribute or in any way exploit any information, software or other material obtained through Photo By Fred for commercial purposes (other than as expressly permitted by the provider of such information, software or other material);
• transfer or resell Photo By Fred, in whole or in part, or access to Photo By Fred, to any third party;
• restrict, inhibit or interfere with another Member's use and enjoyment of Photo By Fred or another individual's or entity's use and enjoyment of similar services;
• interfere with or disrupt networks connected to Photo By Fred or violate the regulations, policies or procedures of such networks;
• attempt to gain unauthorized access to Photo By Fred, other accounts, computer systems or networks connected to Photo By Fred, through password mining or any other means;
• post or transmit any bulk emails, advertisements, solicitations, offers for sale of goods or services, surveys, contests, junk e-mail, chain letters, pyramid schemes, investment opportunities or schemes, or other unsolicited commercial communication (except as otherwise expressly permitted by Photo By Fred) or engage in spamming or any duplicative messages or flooding;
• impersonate any other person or entity, or misrepresent your affiliation with any other person or entity;
• create a false identity for the purpose of misleading others as to the identity of the sender or the origin of a message;
• post or transmit any information or software which contains a virus, Trojan horse, worm, time bomb, cancelbot, or other harmful or deleterious component.

We have no obligation to monitor Photo By Fred. You acknowledge and agree, however, that we do retain the right to monitor Photo By Fred and to disclose any information as necessary or appropriate to satisfy any law, regulation or other governmental request, to operate Photo By Fred properly, or to protect itself or its subscribers. We will not intentionally monitor or disclose any private electronic message unless required by law. We reserve the right to refuse to post or to remove any information or materials, in whole or in part, that, in our sole discretion, are unacceptable, undesirable, inappropriate or in violation of these Terms of Service.

Member Account, Password, Security, and Privacy

It is our policy to respect the privacy of our members. All information you provide to Photo By Fred is protected under the terms of our Privacy Policy. Photo By Fred will not monitor, edit, or disclose any personal information about you or your use of our services, including their content, without your prior permission, unless Photo By Fred has a good faith belief that such action would be necessary to: (1) conform to legal requirements or comply with legal process; (2) enforce the Terms of Service; (3) protect and defend the rights or property of Photo By Fred; or (4) act to protect the interests of our members or others. Photo By Fred may provide certain user information in aggregate form to third parties, including its investors, contributors, and advertisers, for demographic purposes.

Membership privileges at Photo By Fred are provided to businesses, and to individuals who are at least 18 years old or minors (persons who are under 18 years of age) who have the permission of their Legal Guardian to open and maintain an account. To become a Member of Photo By Fred, you must complete our registration process, providing current, complete and accurate information as requested on the registration forms. You will choose your own username and password. You are entirely responsible for maintaining the confidentiality of your password and the security of your account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to immediately notify us of any unauthorized use of your account or any other breach of security known or suspected by you. You must also maintain and update this information to keep it true, accurate, current and complete. If any information provided by you is untrue, inaccurate, not current or incomplete, we have the right to terminate your account and refuse any and all current or future use of Photo By Fred.

Some personal information you provide to Photo By Fred may be stored outside of the country in which you reside.

You agree that Photo By Fred may access your account, including its contents, as stated above or to respond to service or technical issues.

Intellectual Property Rights

You acknowledge that any and all content, including but not limited to text, software, music, sound, photographs, video, graphics or other material contained in either sponsor advertisements or electronically distributed, commercially produced information presented to you by Photo By Fred itself, Photo By Fred's Advertisers, or other content providers, is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. You may make a copy of this content for your personal, non-commercial use only, provided that you keep all copyright and other proprietary notices intact. You may not modify, copy, reproduce, republish, upload, post, transmit, or distribute in any way content available through Photo By Fred and its associated Web sites, including text, music, graphics, code and software.

Links from and to PhotoByFred.com

Links included within Photo By Fred may cause you to leave our Web site and be connected to external sites ("Linked Sites") which are not under the control of Photo By Fred. You acknowledge and agree that Photo By Fred has no responsibility for the accuracy or availability of information provided by the Linked Sites, or any link contained in a Linked Site, or any changes or updates to such sites. Photo By Fred is not responsible for Webcasting or any other form of transmission received from any Linked Site. Photo By Fred provides these links to you only as a convenience. Links to external Web sites do not constitute an endorsement by Photo By Fred of the sponsors of such sites or the content, products, advertising or other materials presented on such sites. We do not author, edit, or monitor these external pages or links. You acknowledge and agree that we are not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on such external sites or resources.

In addition, other external sites may contain links to Photo By Fred ("Referring Sites"). Most of these Referring Sites have not contacted us prior to creating the link(s) to our site, and are not under the supervision or direction of Photo By Fred. You acknlowledge and agree that any information presented in association with such links is beyond the control of Photo By Fred, and we further have no control over the accuracy or presentation of that information. If any such referring links contain misleading or otherwise misrepresentative material, we may assist efforts to correct the source, but are under no obligation to do so.

Photo By Fred cannot and will not honor any embellishments of or additions to offers or obligations made in its name by external sites, whether those sites are Linked Sites or Referring Sites.

Payment

For features of Photo By Fred for which periodic charges apply, each subscriber to such features is responsible for the subscription fees and any charges incurred therefor. After you become a registered Subscriber for such features, Photo By Fred automatically charges your credit card each month until you notify us in writing via confirmed-delivery email, through use of an appropriate form on the Photo By Fred Web site, by telephone or Fax, or by sending physical mail, requesting that we cancel your subscription to such features and/or to Photo By Fred generally. You will always receive a notification of the billing at least two days in advance of our when we charge your card.

If you elect to purchase such Additional Services, you agree to provide Photo By Fred with accurate and complete billing information, including your legal name, address and telephone number, and to update this information within 30 days of any change to it. Payment, or attempting payment, by fraudulent means will result in immediate and permanent termination of your account, and possible criminal penalties. Photo By Fred will also immediately furnish to the appropriate authorities any and all relevant information regarding such fraudulent activities upon discovery. On signing up for Additional Services, you must pay Photo By Fred the then applicable fees ("Fees"). A schedule of currently applicable Fees is always available in the relevant sections of Photo By Fred, within the pages which describe the Services. We reserve the right to change the Fees or applicable charges and to institute new charges at any time, upon thirty (30) days prior notice to you (which may be sent by email). The Fees will automatically be charged annually or according to subscription, in advance.

Your account will be considered delinquent if your credit card company refuses for any reason to pay the amount billed to it and that amount remains unpaid at the beginning of the next accounting cycle. Unpaid balances are subject to interest charges of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is greater, in addition to all expenses of collection. The Additional Services may be suspended, archived or purged from system if your account is delinquent for more than one billing cycle. We are not obligated to restore archived data from delinquent accounts and may impose a charge to do so.

If you believe you have been billed incorrectly, you must provide notice no later than 60 days after the closing date on the first billing statement in which you believe such error occurred, in order to receive an adjustment or credit. Inquiries should be directed to Photo By Fred's Customer Support department via email to support@PhotoByFred.com.

We may choose to bill through an invoice, in which case, you must submit full payment for invoices issued in any given month within thirty (30) days after the mailing date of such invoice, or your service subscription at Photo By Fred may be terminated. Unpaid invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is greater, in addition to all expenses of collection.

Limitation of Liability

The information and services included in or available through Photo By Fred may include inaccuracies or typographical errors. Changes are periodically made to the information herein, including addition of new material, and deletion of existing information. Photo By Fred and/or its respective suppliers may make improvements and/or changes in Photo By Fred at any time.

Photo By Fred does not represent or otherwise warrant that our service will be uninterrupted or error-free, that defects will be corrected, or that Photo By Fred or the server that makes it available, are free of viruses or other harmful components. Photo By Fred does not warrant or represent that the use or the results of the use of Photo By Fred or the materials made available as part of Photo By Fred will be correct, accurate, timely, or otherwise reliable.

You specifically agree that Photo By Fred shall not be responsible for unauthorized access to or alteration of your transmissions or data, any material or data sent or received or not sent or received, or any transactions entered into through Photo By Fred. You also specifically agree that Photo By Fred is not responsible or liable for any threatening, defamatory, obscene, offensive or illegal content or conduct of any other party or any infringement of another's rights, including intellectual property rights. You also specifically agree that Photo By Fred is not responsible for any content sent using and/or included in Photo By Fred by any third party.

PHOTO BY FRED AND/OR ITS RESPECTIVE SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF PHOTO BY FRED FOR ANY PURPOSE. PHOTO BY FRED IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. PHOTO BY FRED AND/OR ITS RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO PHOTO BY FRED, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

NEITHER PHOTO BY FRED NOR ANY OF ITS EMPLOYEES, SUPPLIERS, AGENTS, ASSIGNS, SUCCESSORS, AFFILIATES, OR CONTENT OR SERVICE PROVIDERS SHALL BE LIABLE TO YOU OR OTHER THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER ARISING OUT OF THE USE OF PHOTO BY FRED, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF PHOTO BY FRED OR RELATED WEB SITES, WITH THE DELAY OR INABILITY TO USE PHOTO BY FRED OR RELATED WEB SITES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, INABILITY TO GAIN ACCESS TO OR USE PHOTO BY FRED, UNAUTHORIZED ACCESS TO, LOSS OF, OR ALTERATION OF YOUR DATA OR TRANSMISSIONS, OR OUT OF ANY BREACH OF ANY WARRANTY, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED MATERIAL OBTAINED THROUGH PHOTO BY FRED, OR OTHERWISE ARISING OUT OF THE USE OF PHOTO BY FRED, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF PHOTO BY FRED OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE RESPECTIVE LIABILITY OF PHOTO BY FRED, ITS EMPLOYEES, SUPPLIERS, AGENTS, SUCCESSORS, ASSIGNS, AFFILIATES, AND CONTENT OR SERVICE PROVIDERS IS LIMITED TO THE GREATEST EXTENT PERMITTED BY SUCH LAW. IF YOU ARE DISSATISFIED WITH ANY PORTION OF PHOTO BY FRED, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING PHOTO BY FRED AND ITS RELATED WEB SITES.

Indemnification

You agree to defend, indemnify and hold Photo By Fred, its affiliates, parents, officers, directors and employees harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys' fees, arising in any way from your use of Photo By Fred or the placement or transmission of any message, information, sound, graphic image, software or other material through Photo By Fred by you or users of your account or related to any violation of these Terms of Service by you or any user of your account.

Failure to Comply With Terms of Service and Termination

Subscription to Photo By Fred may be terminated at any time, with or without cause, by either Photo By Fred upon notification by email or telephone, or by the Subscriber with notice as provided in the next paragraph. When the termination is requested by the Subscriber, any subscription fees are NOT refunded. Subscribers are liable for charges incurred by them through the time of their termination of service.

To cancel an Photo By Fred subscription, you must contact the Photo By Fred Customer Support department using confirmed-delivery email, forms on our Web site, or via Fax, postal mail or telephone. The email address for this is support@PhotoByFred.com

You acknowledge and agree that we may terminate your password or account or deny you access to all or part of Photo By Fred without prior notice if you engage in any conduct or activities that we, in our sole discretion, believe violate any of these Terms of Service, violate the rights of Photo By Fred, or is otherwise inappropriate for continued access.

Photo By Fred has no obligation to maintain any content in your account on termination, or to forward any unread or unsent messages to you or any third party.

If you purchased Additional Services, you must pay in full for such Additional Services up to and including the last day on which they are provided. We will remove all content of an account shortly after cancellation or termination, and we may, but are not obligated to, delete archived data. Except as otherwise expressly provided herein, all sections of these Terms of Service which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, warranty disclaimers, and limitations of liability. Termination is not an exclusive remedy and we reserve all other available remedies.

Photo By Fred will immediately terminate any account which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk e-mail. In addition, because damages are often difficult to quantify, if actual damages cannot be reasonably calculated then you agree to pay Photo By Fred liquidated damages of $50 for each piece of spam or unsolicited bulk e-mail transmitted from or otherwise connected with your account, otherwise you agree to pay Photo By Fred's actual damages, to the extent such actual damages can be reasonably calculated.

Participation in Promotions of Advertisers

Any dealings with Advertisers found on Photo By Fred or participation in promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and the Advertiser or other third party. Photo By Fred shall not be responsible or liable for any part of any such dealings or promotions.

Miscellaneous

The Terms of Service and the relationship between you and Photo By Fred shall be governed by the laws of the State of Massachusetts, and the United States of America, without regard to any conflict of law provisions. You and Photo By Fred each agree to submit to the personal and exclusive jurisdiction of the courts located within the state of Massachusetts. Use of Photo By Fred is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Photo By Fred as a result of this agreement or use of Photo By Fred unless provided in a separate, specific and additional agreement executed by both parties. Photo By Fred's performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of Photo By Fred's right to comply with governmental, court and law enforcement requests or requirements relating to your use of Photo By Fred or information provided to or gathered by Photo By Fred with respect to such use. The failure of Photo By Fred to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect as written. Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and Photo By Fred with respect to Photo By Fred and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Photo By Fred with respect to Photo By Fred. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and Photo By Fred agree that any regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of Photo By Fred or the Terms of Service must commence within one (1) year after such claim or cause of action arose; otherwise, such cause of action is permanently and forever barred. The section titles in these Terms of Service are solely used for the convenience of the parties and have no legal or contractual significance.

It is the express will of the parties that this agreement and all related documents have been drawn up in contemporary American English.

Any example companies, organizations, products, people and events depicted herein are fictitious. No association with any real company, organization, product, person, or event is intended or should be inferred.

Any rights not expressly granted herein are reserved.

Copyright and Trademark Notices

All contents of PhotoByFred.com are Copyright © 2004-2008 by Photo By Fred and/or its suppliers, Photo By Fred, c/o Post Office Box 15571, Boston, Massachusetts 02215 USA. All rights reserved.

Trademarks

Photo By Fred, PhotoByFred.com, LimitedEditionPhoto.com, and/or other Limited Edition Photo products and services referenced herein are either trademarks or registered trademarks of Photo By Fred. The names of actual companies and products mentioned herein may be the trademarks of their respective owners.