Terms of Use
Last Updated: May 24, 2012
Third-Party Websites, Software and Services
The Sites may direct you to websites, 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 Shutterfly and the Sites direct you to such Third Party Properties does not indicate any approval or endorsement of any 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 web sites may provide links to Shutterfly with or without our authorization. We do not endorse such sites, and are not and shall not be responsible or liable for any links from those sites to Shutterfly, 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 WEB SITES AND RESOURCES, INCLUDING WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEB SITES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.
We shall have the right, at any time and in our sole discretion, to block links to Shutterfly through technological or other means without prior notice.
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:
- You will retain ownership of such User Submitted Materials, and you grant Shutterfly and its 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 provision or production of any product or service you request. We use User Submitted Materials only in connection with products or services we provide that you request, and for no other reason. 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. Similarly, if you want to share a photobook with your friends and family, Shutterfly will accommodate your request by making available your photos to your friends and family to download and/or to use and create projects of their own, and to purchase products with those photos.
- Please note that, while you retain ownership of your User Submitted Materials, any template or layout in which you arrange or organize such User Submitted Materials through tools and features made available through Shutterfly are not proprietary to you, and such template or layout shall be the sole and exclusive property of Shutterfly.
- 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 property right of any third party, and that the User Submitted Materials are not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable.
- 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 Shutterfly a copy of any such consents, releases and/or permissions upon Shutterfly’s request). If you do submit a Submission that contains the likeness of an identifiable individual is 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.
- 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), alter or refuse to use any User Submitted Materials (including, without limitation, suspended 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 protect ourselves or our affiliates, distributors, partners, licensors or other third parties, to comply with legal obligations or governmental requests.
- You agree to indemnify and hold Shutterfly, Inc. and their directors, officers, shareholders, employees, consultants, agents, representatives, affiliates, distributors, partners, licensees, producers, manufacturers and third party users harmless from and against any and all claims, liabilities, causes of action, damages, losses and expenses (including, without limitation, attorneys' fees) that arise directly or indirectly out of or from: (i) your breach of these Terms, any other agreement or terms of use with Shutterfly and any representation or warranty contained herein or therein; (ii) your User Submitted Materials; and/or (iii) your activities in connection with obtaining any products or services from Shutterfly.
- Please note that some of our Sites have an automated method of reporting User Submitted Materials that they believe to be inappropriate. If we do provide such a method, User Submitted Materials that are reported more than a certain number of times may be automatically removed from our Sites; provided, however, that Shutterfly has no obligation to remove User Submitted Materials in response to user reports or requests. Shutterfly is not responsible for, and will have no liability for, the removal or non-removal 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.
Copyright Issues
While we aren’t obligated to review User Submitted Materials for copyright infringement, Shutterfly is committed to protecting copyrights and expects users of the Sites to do the same. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that any material used or displayed on or through the Sites infringes your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow us to locate the material on the Sites; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.copyright.gov/ for details. DMCA notices and counter-notices regarding Shutterfly should be sent to:
ATTN: Legal
Shutterfly, Inc.
2800 Bridge Parkway
Redwood City, CA 94065
Email: copyright@cs.shutterfly.com
Forums
We may permit you to share your User Submitted Materials with other users, including but not limited to our user comment functionality, online image share feature and our public gallery, user forums and blogs (collectively, "Forums"). Some Forum participants may use anonymous screen names and may have no other connection with Shutterfly or any of its brands. A large volume of material is available in our Forums and Forum participants may occasionally post messages or make statements, whether intentionally or unintentionally, that are inaccurate, misleading or deceptive, and provide content that may be objectionable to you. We neither endorse nor are responsible for such messages, statements, or content, or any opinion, advice, information or other utterance made or displayed by third parties, whether such third parties are users of our website or others. The opinions expressed in the Forums reflect solely the opinions of the participants and may not reflect the opinions of Shutterfly or any of its brands. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages or for any results obtained from the use of such information. Under no circumstances will Shutterfly, any of our affiliates, distributors, partners, licensors, advertisers or sponsors, and/or any of our or their directors, officers, employees, consultants, agents or other representatives be liable for any loss or damage caused by your reliance on such information obtained through our website. We may, but have no obligation to, monitor the Forums and any materials displayed, transmitted or otherwise made available on or through the Forums or otherwise through our website.
Some features of our website enable you to send and receive transmissions. You acknowledge and agree that Shutterfly has no responsibility or liability for any transmissions, and/or any content included in such transmissions, sent or received by you. Shutterfly reserves the right, in its sole discretion and at any time, to set limits on the number and size of any transmissions sent by or received through our website and/or the amount of storage space available for transmissions or for any feature made available through our website.
Disclaimer of Warranties
EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THESE TERMS, THE 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, SHUTTERFLY, AND THEIR AFFILIATES, DISTRIBUTORS, PARTNERS, LICENSORS, ADVERTISERS, SPONSORS AND AGENTS 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 DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NOTE: APPLICABLE LAW MAY NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. NO STATEMENT OF SHUTTERFLY OR ANY OF ITS EMPLOYEES, AGENTS, REPRESENTATIVES, DISTRIBUTORS OR OTHER THIRD PARTIES, SHALL CREATE ANY WARRANTY OTHER THAN THOSE EXPRESSLY CONTAINED IN THESE TERMS.
Limitation of Liability
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER SHUTTERFLY NOR ANY OF THEIR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES, DISTRIBUTORS OR PARTNERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR LOSS OF DATA), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE PROVISION OF PRODUCTS OR SERVICES. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH SERVICES IS TO STOP USING THE SERVICES, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH PRODUCTS IS TO OBTAIN A REFUND THEREFORE IN ACCORDANCE WITH THESE TERMS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF SHUTTERFLY ARISING OUT OR IN CONNECTION WITH THE PROVISION OF OR FAILURE TO PROVIDE ANY PRODUCTS OR SERVICES SHALL BE THE ACTUAL PRICE PAID THEREFORE BY YOU. NOTE: SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Policy for Idea Submission
Many of our customers are interested in submitting ideas and suggestions for products and services to be used at Shutterfly and/or any of our brands, either independently of, or in conjunction with, our internally developed concepts. We appreciate our customers' interest in improving the Sites; however, please note that any such ideas or suggestions that you submit will be owned by Shutterfly, and you hereby irrevocably assign any intellectual property rights in such ideas and suggestions to Shutterfly. 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.
You can inquire regarding such approval by sending a letter to Shutterfly, Inc. 2800 Bridge Parkway, Redwood City, CA 94065 Attn: Idea Submission. If we are interested in pursuing any idea or suggestion of yours, we will contact you. Please note that an additional legal agreement may be required by Shutterfly in order to evaluate your idea or suggestion.
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
Intellectual Property Notices
Portions of the Service are covered by U.S. Patents 6,583,799; 6,583,852; 6,587,596; 6,646,754; 6,839,803; 6,941,276; 6,943,866; 6,973,222; 7,016,059; 7,016,869; 7,120,274; 7,269,800; 7,395,229; 7,467,222; 474,801; 7,576,752; 8,024,231; 8,024,233; 8,036,489; 8,065,196; and other issued US patents and pending US patent applications. The Service is ©1999-2012 Shutterfly, Inc. All rights reserved.
All trademarks and service marks on Shutterfly and any of our Sites not owned by us are the property of their respective owners. Shutterfly owns the following registered trademarks and logos: "Big Impressions", "Magnolia Press", "Make on Like This", Tiny Prints’ elephant logo, "Nexo", "Photoworks", "Picture More", "Postcards by Shutterfly", "Shutterfly", "Shutterfly Collections", "Shutterfly Express", "Shutterfly Studio", "Shutterfly.com", "Tell Your Story", "Tiny Prints", "Wedding Paper Divas", "Wink", "Your Pictures and More" and "Treat". The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on Shutterfly or any of our Sites should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.
Jurisdictional Issues
Shutterfly and its brands 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. Shutterfly does not represent or warrant that any of its Sites, products, and/or services or any part thereof is appropriate or available for use in any particular jurisdiction. Those who choose to access Shutterfly do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. We may limit Shutterfly’s availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
Miscellaneous
These Terms are governed by and construed in accordance with the laws of the State of California, United States of America, without regards to its principles of conflicts of law. You agree to submit to the exclusive jurisdiction of any State or Federal court located in the County of Santa Clara, California, United States of America, and waive any jurisdictional, venue or inconvenient forum objections to such courts. If any provision of these Terms, or the application thereof to any person, place or circumstance, shall be held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, such provision shall be enforced to the maximum extent possible, or, if incapable of such enforcement, shall be deemed to be deleted from these Terms, and the remainder of these Terms and such provisions as applied to other persons, places and circumstances shall remain in full force and effect. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy. This is the entire agreement between us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between us with respect to such subject matter. These Terms are not assignable, transferable or sublicenseable by you except with our prior written consent. These Terms may not be modified or amended except as set forth in the introductory section of these Terms. Any heading, caption or section title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
If you have any questions or comments regarding these Terms, please contact: legal@shutterfly.com
Termination
Either you or Shutterfly may terminate your access to the Sites and to your account at any time, with or without cause, and with or without prior notice. Upon termination for any reason, your right to access and/or use the Sites will immediately cease. Upon termination, you will have no further access to any information, files or materials related to your account, including, without limitation, any User Submitted Materials. Upon termination, Shutterfly may delete all information, files and materials related to your account, including any User Submitted Materials, and you agree that Shutterfly shall have no liability whatsoever to you or any third party as a result of a termination of your rights of access to your account and/or the deletion of any information, files or materials related to your account. In addition, Shutterfly shall have no obligation whatsoever to make any such information, files or materials available to you following a termination of your rights of access to your account.
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