Terms And Conditions

This End-User Software License Agreement (hereinafter referred to as 'Terms') is a legal agreement between you and FotoDesk Group AG (hereinafter referred to as 'FotoDesk'). Please read this Terms carefully before installing or using the software distributed together with this. Your use of FotoDesk's website, services, software, and any features included in the Services (referred to collectively as the 'Services' in this document, and excluding any services provided to you by FotoDesk under a separate written agreement) are governed by this agreement. By installing or using the Services, you agree to be bound by the terms. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE SERVICES.

FotoDesk reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms, at any time. It is your responsibility to check these Terms periodically for changes. Your continued use of the Services following the posting of changes will mean that you accept and agree to the changes. As long as you comply with these Terms, FotoDesk grants you a personal, non-assignable and non-exclusive license to install and use the Services. You can find the latest version of this Agreement at FotoDesk's website.

1. Language of the Terms

1.1 Where FotoDesk has provided you with a translation of the English language version of the Terms, then you agree that the translation is provided for your convenience only and that the English language versions of the Terms will govern your relationship with FotoDesk.

1.2 If there is any contradiction between the English language version of the Terms and the translation, then the English language version shall take precedence.

2. Provision of the Services by FotoDesk

2.1 FotoDesk has subsidiaries and affiliated legal entities in other parts of the world ("Subsidiaries and Affiliates"). Sometimes, these companies will be providing the Services to you on behalf of FotoDesk. You acknowledge and agree that FotoDesk’s Subsidiaries and Affiliates will be entitled to provide the Services to you.

2.2 FotoDesk is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services provided by FotoDesk may change from time to time without prior notice to you.

2.3 You acknowledge and agree that FotoDesk may, as part of continuing innovation, stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at FotoDesk’s sole discretion, without prior notice to you. Incase FotoDesk becomes involved in a merger, acquisition, or any form of sale of some or all of its assets, FotoDesk reserves the right to re-brand or relocate the Services.

2.3 You acknowledge and agree that while FotoDesk may not have currently set a fixed upper limit on the number of transmissions through the Services or on the amount of storage space used for the provision of any Service, such fixed upper limits may be set at any time at FotoDesk's sole discretion.

2.4 FotoDesk may provide Services in collaboration with its partners. FotoDesk does not take responsibility for partner behavior or for offers given by the partner companies.

3. Use of the Services by you

3.1 In order to access Services, you may be required to provide information about yourself (such as identification/ contact details/credit card details) as part of the registration process for the Services. You agree that any registration information you give to FotoDesk will always be accurate, correct, and up-to-date.

Some of the information we collect from you may be personally identifiable information. We will comply with our Privacy Policy at all times with respect to this information. You are solely responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account.

3.2 You agree to use the Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation, or generally-accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the relevant countries) (c) instructions provided in the FotoDesk website (including the instructions provided in the FAQ section).

3.3 You agree to use the promotional codes and offers as per the terms supporting each promotional codes and offers. Non-compliance to the terms supporting the promotional codes and offers will give FotoDesk the right not to consider the offer supporting the promotional codes. FotoDesk reserves the right to withdraw any feature, Services, or offer at any time.

3.4 You agree not to access or attempt to access any of the Services by any means other than through the interface that is provided by FotoDesk, unless you have been specifically allowed to do so in a separate agreement with FotoDesk. You specifically agree not to access or attempt to access any of the Services through any automated means, including using malicious scripts or web crawlers, and shall ensure that you comply with the instructions present on the Services.

3.5 You agree that you will not engage in any activity that interferes with or disrupts the Services or the servers and networks connected to the Services.

3.6 Unless you have been specifically permitted in a separate agreement with FotoDesk, you agree that you will not reproduce, duplicate, copy, sell, trade, or resell the Services for any purpose.

3.7 You agree that you are solely responsible for (and that FotoDesk has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which FotoDesk may suffer) of any such breach.

3.8 FotoDesk may, at its discretion, prescribe fees for any of its Services. We will inform you if you are required to pay a fee for the service or feature. You will be obligated to pay the fees presented to you. PLEASE KEEP IN MIND THAT ANY FEES YOU PAY ARE PAYABLE IN ADVANCE AND ARE NOT REFUNDABLE IN WHOLE OR IN PART. As the account holder, you are responsible for all charges incurred, including applicable taxes, and all purchases made by you or anyone that uses your account.

3.9 In case a fee is introduced for any of the Services or there is a change in the fee of an already-payable service, these changes will be posted on FotoDesk website and you are responsible for reviewing the price details at FotoDesk website to obtain timely notice of such changes. Your continued use of the Services after the posting of changes on FotoDesk website means that you accept such changes. If any change is unacceptable to you, do not install or use FotoDesk's Services. FotoDesk shall not be liable to refund any fees if you continue to use the Services after the changes have been posted on the website. If your use of our paid services is subject to service tax, then FotoDesk may also charge you for any such taxes.

4. Privacy and your personal information

4.1 For information about FotoDesk's data protection practices, please read FotoDesk's privacy policy . The policy explains how FotoDesk treats your personal information and protects your privacy when you use the Services.

4.2 You agree to the use of your data in accordance with FotoDesk’s privacy policies.

4.3 If FotoDesk becomes involved in a merger, acquisition, or any form of sale of some or all of its assets, personal information required for providing the Services without any interruption will also be transferred and it may become subject to a different privacy policy. Information regarding any such merger, acquisition, or sale would be put up on the website of FotoDesk.

5. Content in the Services

5.1 You should be aware that Content presented to you as part of the Services, including but not limited to advertisements in the Services and sponsored Content within the Services may be protected by intellectual property rights owned by the sponsors or advertisers who provide that Content to FotoDesk (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute, or create derivative works based on this Content (either in whole or in part) unless you have been specifically told that you may do so by FotoDesk or by the owners of that Content in a separate agreement.

5.2 Our application uses copyrighted free fonts with associated usage licenses. You are expected to read and understand the copyright information of these fonts

5.3 FotoDesk reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse, or remove any or all Content from any Service.

5.4 You shall ensure that the images respect valid laws, specifically the provisions of criminal law concerning pornography, violence, and paedophilia as well as the laws on intellectual property. FotoDesk will report any violation if noticed.

5.5 You understand that by using the Services you may be exposed to Content that you may find offensive, indecent, or objectionable and that, in this respect, you use the Services at your own risk.

5.6 You agree that you are solely responsible for (and that FotoDesk has no responsibility to you or to any third party for) any Content that you create, transmit, or display while using the Services and for the consequences of your actions (including any loss or damage which FotoDesk may suffer) by doing so.

You agree that you will NOT post, place or transmit any contents that:

• is threatening, defamatory, abusive, obscene, pornographic, inappropriate or profane material or any other material that could give rise to any civil or criminal liability under applicable law.

• infringes rights of privacy, publicity, copyrights or other intellectual property rights without the permission of the owner of these rights and the persons (or their parents or legal guardians, where applicable) who are shown in the material if applicable;

• is sent from an anonymous or false address;

• promotes bigotry, racism, hatred or harm against any individual or group.

5.7 You are responsible for all the images you upload, share (privately or publicly) or copy using the Service. You must either own all right, title and interest in and to the copyrights in the images or have express permission from the copyright owner to copy and use such images for all purposes related to the Service, and the images may not violate or infringe upon the rights (including other intellectual property rights, privacy, moral or publicity rights) of others. Professional images that are provided to you by professional photographers or made available through websites, magazines, books or other resources, are protected by copyright and should not be uploaded, shared (privately or publicly) or copied using the Service.

5.8 You agree to indemnify and hold FotoDesk, its subsidiaries, affiliates, officers, directors, employees, agents, licensors, suppliers harmless from and against all claims, liabilities, losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from (i) 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 Service using your account and/or (ii) a claim that an image uploaded by you infringes third party intellectual property rights.

6. Proprietary rights

6.1 You acknowledge and agree that FotoDesk owns all legal right, title, and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the World those rights may exist).

6.2 Unless you have agreed otherwise in writing with FotoDesk, none of the provisions in the Terms give you a right to use any of FotoDesk’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.

6.3 FotoDesk acknowledges and agrees that it obtains no right, title, or interest from you (or your licensors) under these Terms in or to any Content that you submit, post, or transmit on or through the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the World those rights may exist). Unless you have agreed otherwise in writing with FotoDesk, you agree that you are responsible for protecting and enforcing those rights and that FotoDesk has no obligation to do so on your behalf.

6.4 You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices), which may be affixed to or contained within the Services.

7. License from FotoDesk

7.1 FotoDesk gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by FotoDesk as part of the Services as provided to you. This license is for the sole purpose of enabling you to use and enjoy the benefits of the Services as provided by FotoDesk, in the manner permitted by the Terms.

7.2 You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told by FotoDesk in writing that you may do so.

7.3 Unless FotoDesk has given you specific written permission to do so, you may not assign (or grant a sub-license of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software.

8. Content license from you

8.0 You retain copyright and any other rights you already hold in Content, which you submit or post through the Services. By submitting or posting the content, you give FotoDesk a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, and distribute any Content which you submit, post, or display on or through the Services.

8.1 This license is for the sole purpose of enabling FotoDesk to display, distribute, and promote the Services.

8.2 You agree that this license includes a right for FotoDesk to make such Content and your personal information available to other companies, organizations, or individuals with whom FotoDesk has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.

8.3 You understand that FotoDesk, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services, or media. You agree that this license shall permit FotoDesk to take these actions.

8.4 FotoDesk stores and processes the information, which FotoDesk collects from you, in countries in which FotoDesk or its agents have facilities. Your acceptance of this agreement includes your consent to transfer such information outside your country.

8.5 You confirm and warrant to FotoDesk that you have all the rights, power, and authority necessary to grant the above license.

9. Images

9.1 The service provided by ColorMailer also allows you to share images and photo books publicly and privately with family and friends thereby giving them access to your albums and images. You can do this either by:

• using our websites to allow your albums to be accessed by any member of the public; or
• using our websites to allow your albums to be accessed by friends who you have nominated by inputting their email addresses.

9.2 By sharing albums or images you warrant that you have obtained all the necessary third party consents to permit you do so and further that the sharing of same does not infringe the rights of any third party

• Your friends are permitted to buy printed images of the photo books you share, submit comments and notify offensive material in respect of those photos which you have given them access to. We will not be responsible for any action taken by your friends who have been given access by you to your photo books and images.
• You should not nominate any friends if you do not wish to allow them to order prints which use the images in your photo books.
• You may delete images uploaded/shared to our websites by you at any time.

10. Software updates

10.1 The Software that you use may automatically download and install updates from time to time from FotoDesk. These updates are designed to improve, enhance, and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit FotoDesk to deliver these to you) as part of your use of the Services.

11. Termination

11.1 The Terms will continue to apply until terminated.

11.2 FotoDesk may, at any time, terminate its legal agreement with you if:

• you have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or

• FotoDesk is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or

• the partner with whom FotoDesk offered the Services to you has terminated its relationship with FotoDesk or ceased to offer the Services to you; or

• FotoDesk transitions to not providing the Services to users in the country in which you are a resident of or from which you use the Services; or

• the provision of the Services to you by FotoDesk is, in FotoDesk’s opinion, no longer commercially viable.

11.3 Nothing in this Section shall affect FotoDesk’s rights regarding provision of Services, which are stated under Provision of Services of the Terms.

11.4 You may terminate this agreement at any time by destroying the FOTODESK SOFTWARE, related documentation, and all copies thereof. Upon termination you must destroy the FOTODESK SOFTWARE, related documentation, and all copies thereof.

11.5 When these Terms come to an end, all of the legal rights, obligations, and liabilities that you and FotoDesk have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of paragraph 14.6 shall continue to apply to such rights, obligations and liabilities indefinitely.

12. Exclusion of Warranty and Limitation of Liability

12.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED ‘AS IS’ AND ‘AS AVAILABLE’. FOTODESK DOES NOT WARRANT THAT THE SERVICES SHALL MEET ALL OF YOUR REQUIREMENTS OR THAT ITS OPERATION SHALL BE UNINTERRUPTED OR ERROR-FREE. YOU SHOULD THEREFORE CARRY OUT APPROPRIATE TESTING OF THE SERVICES BEFORE USING IT. SHOULD ANY OF THE SERVICES PROVIDED BY FOTODESK PROVE DEFECTIVE, WE SHALL ATTEMPT TO CORRECT IT BUT FOTODESK DOES NOT ASSUME ANY LIABILITY FOR YOUR COSTS INCURRED. CORRECTION OF THE FOTODESK SOFTWARE SHALL BE YOUR SOLE REMEDY AND FOTODESK'S ENTIRE LIABILITY. IN NO EVENT SHALL FOTODESK BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, OR INDIRECT DAMAGES SUCH AS LOST OR DESTROYED DATA, DISRUPTION OF PLANNING, CLAIMS OF THIRD PARTIES, OR OTHER SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR FOR ANY OTHER CLAIM BY YOU OR BY ANY OTHER PARTY EVEN IF AN AUTHORIZED DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ANY OF THE FOREGOING CASES.

12.2 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

12.3 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FOTODESK OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.

12.4 FOTODESK FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

12.5 FOTODESK GUARANTEES TO DO ITS UTMOST TO ENSURE AVAILABILITY OF SERVICES. TEMPORARY INTERRUPTION OF THE SERVICES IS, HOWEVER, POSSIBLE DUE TO TECHNICAL REASONS. FOTODESK WILL MAKE EVERY EFFORT TO INFORM YOU AS EFFICIENTLY AS POSSIBLE ABOUT THE NATURE AND DURATION OF ANY INTERRUPTIONS, BUT SHALL INCUR NO LIABILITY WHATSOEVER IN THE EVENT OF NON-AVAILABILITY OF SERVICES. SIMILARLY, FOTODESK CANNOT GUARANTEE THE RELIABILITY AND QUALITY OF THE INTERNET OUTSIDE ITS OWN PREMISES.

12.6 FOTODESK HAS A POWERFUL INFRASTRUCTURE FOR SAVING DATA (PERSONAL DATA, IMAGES, ETC.) WITH WHICH FOTODESK CAN RESTORE THE STORED DATA, EVEN IN THE EVENT OF A SERIOUS FAULT. HOWEVER, FOTODESK SHALL INCUR NO LIABILITY WHATSOEVER IN THE EVENT OF DATA LOSSES. THE USER SHALL KEEP A SAFE COPY OF THE TRANSFERRED FILES ON HIS SIDE. THE IMAGES FILES ARE DELETED FROM FOTODESK'S DATABASE LATEST 30 DAYS AFTER THE PROCESSING OF THE ORDER.

12.7 IN THE EVENT OF LOSS OR DAMAGE TO DATA STORAGE MEDIUM OR SLIDES, THE LIABILITY OF FOTODESK SHALL BE LIMITED TO THE REPLACEMENT OF THE MEDIUM BY NEW MATERIAL OF EQUIVALENT QUALITY.

12.8 YOU WILL BE CHARGED FOR PRINTING OF AN IMAGE EVEN WHERE THE IMAGE SUBMITTED IS OF INSUFFICIENT QUALITY TO PRODUCE A SHARP, CLEAR, AND/OR TRUE COLOUR IMAGE.

12.9 THE INDICATION OF LINKS TO OTHER SITES IS OFFERED AS A CONVENIENCE FOR THE USER. IN NO CASE CAN FOTODESK ASSUME ANY GUARANTEE WITH REGARD TO THE CONTENTS OF THESE SITES, NOR SHALL IT INCUR ANY LIABILITY WHATSOEVER IN THE EVENT THAT A USER HAS ANY COMPLAINTS REGARDING THESE SITES.

12.10 DELIVERY TIME AND DATES ARE ESTIMATES AND FOTODESK DOES NOT COMMIT TO ANY SPECIFIC DELIVERY TIMES OR DATES. THE LIABILITY OF FOTODESK IN CONNECTION WITH THE PROVISION, NON-PROVISION, OR LATE OR DEFECTIVE PROVISION OF SERVICES UNDER THESE TERMS AND CONDITIONS OR THE SUBMISSION OF IMAGES BY USERS SHALL IN NO EVENT EXCEED THE PRICE PAID BY THE CUSTOMER IN RESPECT OF THE RELEVANT IMAGES FOR THE RELEVANT PRINTING SERVICES.

13. Shipping

13.1 FOTODESK is not liable for any loss/damage or late delivery due to any reason beyond its control. Risk of loss of the products ordered by you will pass onto you once FotoDesk passes on the product to the shipping carrier.

13.2 Products may be packed and shipped by external agencies and hence the package may contain the logo of such external agencies.

13.3 FotoDesk may ship the products worldwide. However, FotoDesk reserves the right to stop shipping temporarily or permanently to certain destinations.

14. Out of Stock or Unavailable products

14.1 For a multiple-product order using FotoDesk Services, we will make every attempt to ship all products contained in the order at the same time. Products that are unavailable at the time of shipping will be shipped as they become available, unless you inform us otherwise. You may cancel your order at any time prior to shipping in such cases.

14.2 If the product you have ordered is out-of-stock or unavailable, FotoDesk may not be able to fulfill your order or would have to delay the processing of your order. You will be informed about the delay or unavailability related to your orders, and you may cancel such orders if you wish so.

15. General Terms

15.1 The Terms constitute the whole legal agreement between you and FotoDesk and govern your use of the Services (but excluding any services which FotoDesk may provide to you under a separate written agreement), and completely replaces any prior agreements between you and FotoDesk in relation to the Services.

15.2 You agree that FotoDesk may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.

15.3 You agree that if FotoDesk does not exercise or enforce any legal right or remedy which is contained in the Terms (or which FotoDesk has the benefit of under any applicable law), this will not be taken to be a formal waiver of FotoDesk’s rights and that those rights or remedies will still be available to FotoDesk.

15.4 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.

15.5 You acknowledge and agree that each member of the group of companies of which FotoDesk is the parent shall be third-party beneficiaries to the Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Terms which confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to the Terms.

15.6 The Terms, and your relationship with FotoDesk under the Terms, shall be governed by the laws of Switzerland without regard to its conflict of laws provisions. Notwithstanding this, you agree that FotoDesk be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.