Terms & Conditions


Terms and Conditions

Welcome to Mootsh. Please read these Terms of Use (“Terms”) carefully. They contain the legal terms and conditions that govern your use of and access to our website and mobile site (collectively referred to as “our sites”), as well as our provision of products and services. Certain services, promotions and features may have additional terms and conditions, and those additional terms and conditions are incorporated herein by reference. By visiting any of our sites, you are signifying your assent to these Terms and our Privacy Policy, which is incorporated herein by reference. Any products ordered or services used through any of our Sites are also governed by these Terms. We may revise these Terms from time to time by posting a revised version. YOUR CONTINUED USE OF ANY OF THE SITES AFTER WE POST ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES. IN ADDITION, BY ORDERING PRODUCTS OR USING SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ AND REVIEWED THESE TERMS IN THEIR ENTIRETY, YOU AGREE TO THESE TERMS AND THE PRIVACY POLICY AND THESE TERMS CONSTITUTE BINDING AND ENFORCEABLE OBLIGATIONS ON YOU. NOTE: THIS TERMS OF USE CONTAINS AN ARBITRATION AND CLASS ACTION WAIVER PROVISION IN THE “ARBITRATION” SECTION BELOW THAT AFFECTS YOUR RIGHTS UNDER THIS TERMS OF USE AND WITH RESPECT TO ANY DISPUTE BETWEEN YOU AND US OR OUR AFFILIATES.

1. YOUR USE OF OUR SITES

You may access and use our Sites solely for your personal, noncommercial use. Except as expressly authorized hereunder, our Sites may not be reproduced, duplicated, copied, sold, resold, visited, reverse-engineered or otherwise exploited for any commercial purpose without our prior written authorization. We reserve the right to alter or discontinue our Sites, in whole or in part, at any time in our sole discretion. Subject to and conditioned upon your compliance with these Terms, we grant to you a non-exclusive, non-transferable, limited right and license, without right of sublicense, to access and use our Sites, including any images, text, graphics, sounds, data, links and other materials incorporated into our Sites (other than your User Submitted Materials as defined below), solely as made available by us and solely for your own personal purposes. Except as expressly authorized by these Terms, you may not use, reproduce, distribute, modify, transmit or publicly display any portion of our Sites or create derivative works of any portion our Sites without our written consent. While using any of our Sites, you agree not to:

o Defame, abuse, harass, stalk, threaten or otherwise violate the rights of others, including, without limitation, others’ privacy rights or rights of publicity;

o Impersonate any person or entity or use any fraudulent, misleading or inaccurate email address or other contact information;

o Restrict or inhibit any other user from using any of our Sites, including, without limitation, by means of “hacking” or defacing any portion our Sites;

o Violate any applicable laws or regulations;

o Upload to, transmit through, or display on any of our Sites (a) any material that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights; (b) any confidential, proprietary or trade secret information of any third party; or (c) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication (except as otherwise expressly permitted by us);

o Engage in spamming;

o Transmit any software or other materials that contain any viruses, worms, trojan horses, defects, or other destructive items;

o Modify, adapt, translate, distribute, reverse engineer, decompile or disassemble any portion of our Sites; and

o Remove any copyright, trademark or other proprietary rights notices contained in or displayed on any portion of our Sites.

o Display adult nudity or inappropriate child nudity. o Upload photographs of people who have not given permission for their photographs to be uploaded to a share site.

o Use the Share Sites for the sale of goods or services.

o Post objectionable material, such as material containing hate or malicious content or offers for adult services, or material inciting or advocating terrorism or violence.

If you fail to comply with the above rules, such failure will constitute a violation of these Terms, and in addition to any other rights or remedies we may have, we may immediately terminate your access to and use of our Sites. Some features of our Sites may enable you to send and receive transmissions. You acknowledge that we have no responsibility or liability for any transmissions, and/or any content included in such transmissions, sent or received by you. We reserve the right, in our sole discretion and at any time, to set limits on the number and size of any transmissions sent by or received through our Sites and/or the amount of storage space available for transmissions or for any feature made available through our website.

2. YOUR PERSONAL ACCOUNT

You may create a member account with any of our Sites by registering your name, providing certain information about yourself, and creating a password. You agree that you will provide complete, current and accurate information about yourself as requested, and that you will keep that information up to date. You are responsible for safeguarding the confidentiality of your username and password that you use to access your member account on our Sites. You agree not to disclose your username or password to any third party. YOU AGREE THAT YOU ARE SOLELY AND FULLY RESPONSIBLE FOR ANY ACTIVITIES OR ACTIONS TAKEN UNDER YOUR ACCOUNT, WHETHER OR NOT YOU HAVE AUTHORIZED SUCH ACTIVITIES OR ACTIONS. You will immediately notify us of any unauthorized use of your account on any of our Sites. In order to create a member account with any of our Sites, you must be at least 18 years of age. You represent to us that you are at least 18 years old. If you are not, please do not set up an account with any of our Sites.

3. MAKING PURCHASES

If you wish to purchase any products or services through any of our Sites, we will ask you to supply certain information applicable to your purchase, including, without limitation, payment and other information. Any such information will be treated as described in our Privacy Policy. All information that you provide to us or our third party payment processor must be accurate, current and complete. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. You agree to pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the prices in effect when such charges are incurred. You will also be responsible for paying any applicable taxes relating to your purchases. Verification of information applicable to a purchase may be required prior to our acceptance of any order. Descriptions, images, references, features, content, specifications, products, price and availability of any products or services are subject to change without notice, and our current prices can be found on our Sites. We make reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products or services on our Sites at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased through our Sites. By placing an order, you represent that the products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product or service; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from making any or all purchase(s); and/or to refuse to provide any user with any product or service. Title and risk of loss for any purchases pass to you upon our delivery to our carrier.

4. SUBSCRIPTION TERMS

Our Mootsh membership service (the “Monthly Membership”) offers you an opportunity to have your smartphone/camera photos shipped to you in different size of prints every month. By purchasing or receiving the Mootsh Membership you agree to these Terms. If you do not agree with these Terms, please do not use the Mootsh Membership. The Mootsh Membership will continue month-to month unless and until you skip a renewal, cancel your subscription or we terminate it. You must provide us with a current, valid, accepted method of payment (as such may be updated from time to time, “Payment Method”) to use the Mootsh Membership. We will bill the monthly subscription fee to your Payment Method. The Mootsh Membership price includes shipping and handling (for USA only), but does not include any applicable taxes. We may change the price for the subscription from time to time, and will communicate any price changes to you. Price changes will take effect at the start of the next subscription period following the date of the price change. By continuing to use the Mootsh Membership after the price change takes effect, you accept the new price. Any cancellation of your Mootsh Membership will take effect the day after the last day of the current subscription period.

In connection with your Mootsh Membership, you will receive credits redeemable for photo prints (“Photo Credits”). The number and type of Photo Credits you receive will depend on the Mootsh Membership you purchase. Each Mootsh Membership will have a Photo Credit rollover limit, as set forth on the our Sites when you purchase your Mootsh Membership, and if you exceed the rollover limit for your Mootsh Membership any unused Photo Credit above that limit will be lost. If you end your Mootsh Membership, your Photo Credits will be lost with your other subscription benefits—so it would be best to try and use all of your Photo Credits before you make the final decision to end your Mootsh Membership. You can also place your Mootsh Membership on hold one time every twelve months, which can last for one month.

You may also receive a limited Mootsh Membership as a gift (“Gift Memberships”). A Gift Membership will not be automatically renewed after its term expires, and you cannot cancel a Gift Membership. Photo Credits provided as part of a Gift Membership may be rolled over during an active Gift Membership without limit, but these Photo Credits expire when the Gift Membership ends unless you purchase a Mootsh Membership, in which case any accrued Photo Credits become subject to the terms of the Mootsh Membership you purchase.

From time to time, other types of promotional codes may be available, including those provided as part of a third party promotion. Promotional codes may be redeemed as described in the specifics of the promotion. Promotional codes can only be used once, cannot be redeemed for cash, and may be subject to certain restrictions as determined by us in our sole discretion. If you received a promotional code through an offer by a third party, additional conditions may apply.

The monthly subscription fee for the Mootsh Membership will be billed at the beginning of the paying portion of your subscription and each month thereafter unless and until you cancel your subscription. We automatically bill your Payment Method each month on the 1st calendar day of such month. Subscription fees are fully earned upon payment. We reserve the right to change the timing of our billing, in particular if your Payment Method has not successfully settled. We may contact you via e-mail if there is a problem with your Payment Method or you can view this information at any time in the web app. You may also contact customer service at

info@mootsh.com

at any time with any billing questions. Payments are nonrefundable and there are no refunds or credits for partially used subscriptions. Following any cancellation, however, you will continue to have access to the Mootsh Membership through the end of your current billing period. At any time, and for any reason, we may provide a refund, discount, or other consideration. The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance.

Notwithstanding anything to the contrary herein, we reserve the right to revoke your Mootsh Membership or Gift Membership at any time as a result of a violation of these Terms or the Privacy Policy.

5. THIRD-PARTY SITES, SOFTWARE AND SERVICES

Our Sites may direct you to sites, software or services owned or operated by third parties (“Third Party Properties”). We have not reviewed all of the Third Party Properties to which you may be directed and we have no control over such Third Party Properties. We have no control over and are not responsible for (a) the content and operation of such Third Party Properties, or (b) the privacy or other practices of such Third Party Properties. The fact that our Sites direct you to such Third Party Properties does not indicate any approval or endorsement of any such Third Party Properties. We direct you to such Third Party Properties only as a convenience. You are responsible for the costs associated with such Third Party Properties, including any applicable license fees and service charges. Accordingly, we strongly encourage you to become familiar with the terms of use and practices of any such Third Party Properties. Other sites may provide links to our Sites with or without our authorization. We do not endorse such sites, and are not and will not be responsible or liable for any links from those sites to our Sites, any content, advertising, products or other materials available on or through such other sites, or any loss or damages incurred in connection therewith. YOU AGREE THAT YOUR USE OF THIRD PARTY SITES, SOFTWARE AND SERVICES INCLUDING, WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH SITES, SOFTWARE AND SERVICES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES, SOFTWARE AND SERVICES. We will have the right, at any time and in our sole discretion, to block links to our Sites through technological or other means without prior notice.

6. MATERIALS SUBMITTED BY CUSTOMER

Any materials submitted by you, including, without limitation, photographs, images, text, graphics and other materials (collectively, “User Submitted Materials”) are subject to the following terms and conditions:

o You will retain ownership of such User Submitted Materials, and you grant us and our designees a worldwide, non-exclusive, transferable, royalty-free, perpetual irrevocable right and license, with right of sublicense (through multiple tiers), to use, reproduce, distribute (through multiple tiers), create derivative works of and publicly display such User Submitted Materials solely in connection with the production or provision of any product or service you request or to show you how your User Submitted Materials would appear in our products or services. For example, when you place an order for a product, we will prepare, manipulate (if necessary), and transmit the User Submitted Materials for production, packaging and shipment.

o You represent and warrant that you own or otherwise possess all necessary rights with respect to the User Submitted Materials, and that the User Submitted Materials do not and will not infringe, misappropriate, use or disclose without authorization or otherwise violate any copyright, trade secret right or other intellectual property or other property right of any third party, and that the User Submitted Materials are not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable.

o You consent to the use of your likeness, and you have obtained the written consent, release, and/or permission of every identifiable individual who appears in User Submitted Materials to use such individual’s likeness, for purposes of using and otherwise exploiting the User Submitted Materials in the manner contemplated by these Terms, or, if any such identifiable individual is under the age of eighteen (18), you have obtained such written consent, release and/or permission from such individual’s parent or guardian (and you agree to provide to us a copy of any such consents, releases and/or permissions upon our request). If you do submit a submission that contains the likeness of an identifiable individual under the age of eighteen (18), we strongly encourage you not to include any identifying information (such as the individual’s name or address) with such User Submitted Materials.

o You agree that we may (but are not obligated to) filter any User Submitted Materials (including, without limitation, deleting or replacing expletives or other harmful or offensive language), refuse to use any User Submitted Materials (including, without limitation, suspending processing and shipping of any order relating to any User Submitted Materials) and/or disclose any User Submitted Materials and the circumstances surrounding the use thereof, to any third party in order to provide the applicable products or services, to enforce these Terms or to comply with legal obligations or governmental requests.

o You agree to indemnify and hold us and third party users harmless from and against any and all claims, causes of action, liabilities, damages, losses, expenses and costs (including, without limitation, attorneys’ fees) that arise directly or indirectly out of or from: (i) your violation of these Terms, any other agreement or terms of use with us, any representation or warranty contained herein or therein or any applicable law; (ii) your User Submitted Materials; (iii) your activities in connection with obtaining any products or services from us, or (iv) any activity related to access to or use of your account by you or any other person.

o User Submitted Materials that violate these Terms may be removed from our Sites; provided, however, that we have no obligation to remove User Submitted Materials in response to user reports or requests. We are not responsible for, and will have no liability for, the removal, non-removal or loss of any User Submitted Materials from our Sites. We recommend you keep back-up copies of your User Submitted Materials on your hard drive or other personal system.

7. DISCLAIMER OF WARRANTIES

EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THESE TERMS, OUR PRODUCTS AND SERVICES, INCLUDING ALL MATERIALS INCORPORATED THEREIN, ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE AND OUR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES AND AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NOTE: CERTAIN APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. NO STATEMENT OF OURS OR ANY OF OUR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES AND AFFILIATES SHALL CREATE ANY WARRANTY OTHER THAN THOSE EXPRESSLY CONTAINED IN THESE TERMS.

8. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER WE NOR ANY OF OUR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, OR AFFILIATES (THE ” MOOTSH PARTIES”) SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, PROFITS, USE OR DATA), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, EVEN IF THE MOOTSH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RELATING IN ANY WAY TO OUR PROVISION OF (OR FAILURE TO PROVIDE) PRODUCTS OR SERVICES, OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR SUBMISSIONS OR DATA, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT THE MOOTSH PARTIES ARE NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHERMORE, THE MOOTSH PARTIES WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH PRODUCTS IS TO OBTAIN A REFUND, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH SERVICES IS TO STOP USING THE SERVICES. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF THE MOOTSH PARTIES ARISING OUT OF OR RELATING IN ANY WAY TO OUR PROVISION OF (OR FAILURE TO PROVIDE) PRODUCTS OR SERVICES SHALL BE THE ACTUAL PRICE PAID THEREFORE BY YOU. NOTE: CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.

9. POLICY FOR IDEA SUBMISSION

Many of our customers are interested in submitting ideas and suggestions for products and services to be used at our Sites, either independently of, or in conjunction with, our internally developed concepts. We appreciate our customers’ interest in improving our Sites; however, please note that any such ideas or suggestions that you submit will be owned by us, and you hereby irrevocably assign any intellectual property rights in such ideas and suggestions to us. If you intend to retain any intellectual property rights in your ideas and suggestions (patent, trade secrets, copyright, trademark, etc.), please do not submit them to us without our prior written approval.

10. NOTICE FOR CALIFORNIA USERS

This notice is for our California users: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

11. JURISDICTIONAL ISSUES

Our Sites are controlled and operated from the United States. Our Sites are not subject to the laws or jurisdiction of any state, country or territory other than that of the United States. We do not warrant that any of our Sites, products, and/or services or any part thereof is appropriate or available for use in any particular jurisdiction. Those who choose to access Mootsh do so on their own initiative and at their own risk, and are responsible for complying with all applicable laws, rules and regulations. We may limit the availability of our Sites, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.

12. TERMINATION

Either you or we may terminate your access to our Sites to your account at any time, with or without cause, and with or without prior notice. Without limiting the foregoing, we may terminate your access if you violate these Terms. Upon termination for any reason, your right to access and/or use our Sites will immediately cease. Upon termination, you will have no further access to, and we may delete, any information, files or materials in or related to your account, including, without limitation, any User Submitted Materials. Upon termination, Mootsh may delete all information, files and materials related to your account, including any User Submitted Materials, and we will have no obligation whatsoever to save or make any such information, files or materials available to you. You agree that we will have no liability whatsoever to you or any other party as a result of a termination of your access our Sites and to your account and/or as a result of the deletion or loss of any information, files or materials in or related to your account.

13. ARBITRATION AGREEMENT

These Terms are governed by California law, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and Mootsh agree that, except as otherwise provided in this Section 14, the state and federal courts located in the County of Los Angeles, California will have exclusive jurisdiction of all disputes arising out of or related to these Terms or your use of our Sites and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, Mootsh shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.

If you are a Mootsh customer in the United States (including its possessions and territories), you and Mootsh agree that any dispute, claim or controversy arising out of or relating in any way to the Mootsh service, these Terms, shall be determined by binding arbitration. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”). The arbitration will take place in Los Angeles, California, unless the parties agree to video, phone or internet connection appearances.

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. Arbitrators can award the same damages and relief that a court can award. YOU AGREE THAT, BY AGREEING TO THESE TERMS, THE U.S. FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THIS PROVISION, AND THAT YOU AND MOOTSH ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. This arbitration provision shall survive termination of this Agreement and the termination of your Mootsh account.

14. AUTOMATIC RENEWAL

YOUR MOOTSH MEMBERSHIP AND PAYMENT TO US WILL AUTOMATICALLY RENEW AT THE END OF THE SUBSCRIPTION PERIOD, UNLESS YOU CANCEL YOUR SUBSCRIPTION BY CONTACTING CUSTOMER SERVICE AT

INFO@MOOTSH.COM

OR WE TERMINATE IT BEFORE THE END OF THE CURRENT SUBSCRIPTION PERIOD.