Image Relay Terms of Service (October 13, 2021).

By using any of the services of Image Relay including, without limitation, Image Relay’s Software as a Service application for managing, organizing, and distributing digital assets (collectively, the “Service” or “Services”), you represent that you are at least 18 years old, and you agree to be bound by the terms and conditions set forth herein, including any changes or amendments hereto (the “Terms of Service”), and by the below referenced Privacy Policy. If you are using the Services on behalf of an organization, you are agreeing to these Terms of Service for that organization and representing that you are a duly authorized representative of the organization and that you have the authority to bind that organization to these Terms of Service (in which event, "you" and "your" will refer to that organization). You further represent that you are authorized to enter into financial transactions and are authorized to use credit cards on behalf of your organization. You may use the Services only in compliance with these Terms of Service and any applicable Image Relay purchase order(s) you have entered into, and only if you have the power and capacity to form a contract with Image Relay and are not barred under any applicable laws from doing so. Please contact legal@imagerelay.com if you have any questions regarding these Terms of Service.

Image Relay reserves the right to update and change the Terms of Service from time to time without notice in our sole discretion. We will indicate at the top of these Terms of Service the date that these Terms of Service were last updated. Any changes will be effective as of the date of posting. Accordingly, we encourage you to check these Terms of Service on the Image Relay website frequently. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the most current version of these Terms of Service. Your continued use of the Service after any such changes shall constitute your consent to such changes and your agreement with the most recent Terms of Service. You can review the most current version of the Terms of Service at any time at: https://www.imagerelay.com/terms-of-service.

    1. Copyright and Ownership of Intellectual Property:
      Image Relay has developed, and is the owner of, a Software as a Service application for managing, organizing, and distributing digital assets, including, without limitation, all source code associated therewith (the “Image Relay Application”). You acknowledge Image Relay’s exclusive ownership of the Image Relay Application, and understand and agree that you shall not acquire any rights in or to the Image Relay Application by virtue of these Terms of Service. Any improvements, modifications, or alterations to the Image Relay Application that are made in connection with these Terms of Service or your feedback shall be the sole and exclusive property of Image Relay. The look and feel of the Image Relay Application and all contents of the Image Relay websites and the Services are protected by U.S. and international laws, including laws governing copyrights and trademarks. You agree that you will not do anything to infringe upon, harm, or contest the validity of any intellectual property rights or other rights of Image Relay. Use of the Image Relay Application, websites, or Services in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Image Relay, is also prohibited.

    2. Your Account:
      1. You agree to use your legal full name and (if applicable) legal company name. You must provide a valid email address and any other requested information necessary to complete the signup process.
      2. You are solely responsible for all content that you upload to the Service including, without limitation, files, data, audio, video, images, and all other digital materials (the “Content”).
      3. You are solely responsible for safeguarding your password for the Service and must keep your password confidential and must not share or authorize a third party to use your password. Image Relay cannot and will not be liable for any loss or damage arising from your failure to comply with reasonable account security safeguards.
      4. You are solely responsible for granting users access to your Content and determining the level of permissions and administrative capabilities an individual user may have.
      5. You understand that you may provide personal or company information to set up your Account on the Service (the “Account”). Any personal information you share is governed by Image Relay’s Privacy Policy. You further understand and assume all responsibility and liability when you provide personal information of an individual user of your Content when creating individual user profiles to access your Content, including, without limitation, email address(es) and company information.
      6. You understand that Image Relay integrates with third-party applications to provide you with optimal performance and integrated capabilities. If you choose to access our Services through a third-party application or share your personal information with a third-party application, Image Relay is not responsible for the third party’s use of your personal information, and your personal information will be governed by such third party’s policies.
      7. You are solely responsible for maintaining the Account in its entirety, including, without limitation, organizing Content, administering accounts to access the Content, uploading Content, distributing Content, or deleting Content.
      8. You are solely responsible for all use of your Account; Image Relay will not be liable for any loss or damage resulting from any unauthorized use of your Account or user-generated error on the part of authorized or unauthorized users of your Account.
      9. You acknowledge that Image Relay will send communications regarding the Services, including, without limitation: (a) notices regarding your Account; (b) Notices about updates and promotion information; and (c) information about Image Relay. We will always provide the opportunity to opt out of these communications.
      10. You understand that Image Relay uses third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
      11. Customer support for any technical questions related to the operation of the Service is only available via instant messaging, email, or through our customer support center (http://support.imagerelay.com).
      12. If your Account exceeds the allotted user licenses, bandwidth, storage, or other caps as set forth in your applicable purchase order, you will be notified and provided the opportunity to purchase additional applicable capacity. If you fail to purchase additional applicable capacity or reduce your usage Image Relay reserves the right to charge overage fees, immediately disable your account, or limit your use of the Service until you can reduce your capacity usage.

    3. Your Content:
      1. By uploading Content, you are warranting that you own all proprietary rights or are the authorized representative of the applicable copyright owner(s) of such Content, including copyright, in and to the Content with full power to grant the rights contemplated in connection with use of the Service. You further warrant that you are responsible for: (a) managing the Content; (b) ensuring that you have the continuing legal rights and license(s) to upload, store, and transmit Content in connection with the Service; and (c) ensuring that your Content does not violate these Terms of Service or any laws in your jurisdiction or the jurisdiction of the users or recipients of your Content. Image Relay claims no intellectual property rights, ownership, or responsibility over the Content.
      2. Image Relay does not, and has no obligation to, pre-screen Content. Image Relay may in its sole discretion refuse the upload of Content, or remove Content or Image Relay accounts, if it is of the opinion that the Content violates these Terms of Service or applicable law. However, regardless of any such actions or omissions on the part of Image Relay, you remain solely responsible for your Content.
      3. Image Relay encrypts Content at rest and in transmission using SSL; however, you understand that the technical processing and transmission of the Service, including your Content, may be transferred unencrypted and involve: (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
      4. You expressly authorize Image Relay and its contractors, business partners, and affiliates to share the Content and collect information on the use, storage and transmission of Content and the right to modify, adapt, reproduce, distribute, display, and disclose Content used with the Service solely for the purpose of complying with these Terms of Service and to provide you with additional functionality and enhance the performance of the Service.
      5. You may supply language to Image Relay that is intended to be agreed to by your users. If you do supply such language, you represent and warrant that such language is not unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable or violates any party’s intellectual property rights, these Terms of Service, or applicable law. Image Relay may refuse such language in its sole discretion. In the event that Image Relay agrees to use such language, you agree to indemnify and hold harmless Image Relay against any and all claims or losses (including, without limitation, reasonable attorneys’ fees) relating to such language.

    4. Prohibited Activities: You agree that you will not, and will not permit anyone else to, directly or indirectly:
      1. use the Service in an unlawful manner;
      2. use the Service to transmit data, information, or other materials that are unlawful or objectionable, including any material which is tortious, defamatory, libelous, slanderous, harassing, harmful, threatening, abusive, hateful, harassing, invasive of another’s privacy, obscene, pornographic, or offensive;
      3. use the Service to harm minors in any way, or to stalk, threaten, or otherwise violate the rights of others, including, without limitation, others’ privacy rights, or rights of publicity, or to harvest or collect personal information, including e-mail and IP addresses, about any user of the Service;
      4. transmit any Content that: (i) you do not have the right to transmit under any law or contractual or fiduciary relationships, including without limitation, any inside information or proprietary or confidential information; (ii) misappropriates any trade secret, violates the right of privacy of any party, infringes any patent, copyright, trademark, or other intellectual property right; (iii) constitutes unsolicited or unauthorized advertising or promotional materials, including, but not limited to “spam,” “chain letters,” or pyramid schemes; or (iv) contains any software routine, code, instruction, or virus that is designed to disable, delete, modify, damage, or erase software, hardware, or data;
      5. interfere with the Service, servers, or networks used in connection with the Service;
      6. interfere with the ability of others to access or use the Service;
      7. download, reproduce, copy, transfer, duplicate, sell, resell, sub-license, distribute, publish or exploit for any commercial purposes any portion or elements of the Service;
      8. use the Service in a way that is unlawful, or constitutes an unfair trade practice or a deceptive business practice;
      9. use any robot, spider, or other automatic device to monitor or copy portions of the Service or the Content without Image Relay’s prior written permission;
      10. impersonate any person or entity, falsely claim an affiliation with any person or entity, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the Service, or perform any other similar fraudulent activity, or express or imply that Image Relay endorses you, any image you produce, or any statement you make;
      11. remove or alter proprietary notices, labels, copyright or other proprietary rights on or in the Service or Content;
      12. reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or structure, sequence and organization of the Service or any part thereof; or
      13. otherwise use the Service in violation of any law, regulation, fiduciary relationship, or contract, or in violation of these Terms of Service.

    5. Account Data Analytics:
      1. To provide the Service and improve functionality of the Service you understand that we or our service providers, business partners, affiliates, and other vendors may collect data on the use of your Account including but not limited to user and Content activity. Any personal information collected for analytics purposes is subject to the Image Relay Privacy Policy.
      2. Image Relay automatically records information from the devices and software of the users of your Content including, without limitation, their activity when using the Service.
      3. Image Relay uses “cookies” to collect information to enhance the user experience, improve the speed of our Service, and to enable features of the Service. The use of “cookies” is governed by the Privacy Policy.
      4. Image Relay tracks transmission of Content to provide you with more detailed tracking reports of your Account activity.

    6. Confidentiality:
      Image Relay acknowledges that your Confidential Information is of great value to you. As used herein, “Confidential Information” means any technical data, design, pattern, formula, computer program, source code, object code, algorithm, subroutine, manual, product specification, or plan for a new, revised or existing product; any business, marketing financial pricing, or other sales-related data; any information regarding your present or future business or products; any information regarding employees or contractors including contract information, employee lists, organizational charts, information concerning particular employee skill sets, technical and business knowledge, and compensation; and any information concerning the particular needs of clients or customers and their buying patterns, service needs, price sensitivities, key decision makers (and the contact information for such individuals), product needs, product specifications, request for proposals, and any non-public, customer, partner and vendor information. Image Relay hereby agrees to use reasonable commercial efforts to safeguard the secrecy of any Confidential Information obtained by Image Relay. Image Relay shall use Confidential Information only to provide Services and as otherwise expressly set forth in these Terms of Service.
      You acknowledge and agree that Image Relay shall have no confidentiality obligations to the extent that any Confidential Information: (a) is or becomes (through no improper action on the part of Image Relay) generally available to the public; (b) was in possession of or known by Image Relay prior to receiving it from you; (c) was properly disclosed to Image Relay by a party which was not under any obligation of confidentiality; or (d) was created by Image Relay without reliance on or reference to your Confidential Information. Additionally, Image Relay may disclose Confidential Information to the extent required by applicable law or court order.

    7. Privacy and Data Protection:
      Image Relay respects your privacy. In order to be able to provide the Services, Image Relay may need to access, collect, and store certain personal information (as defined in Image Relay’s Privacy Policy). Image Relay may also need to share such information with the licensors and partners who assist Image Relay in providing the Services. The parameters of Image Relay’s collection, use, and disclosure of personal information are outlined in the Privacy Policy. Your acceptance of these Terms of Service also signifies your acceptance of the terms of the Privacy Policy.
      Image Relay has in place administrative, physical, and technical measures to maintain the security, confidentiality, and integrity of your data. Those measures include safeguards to prevent access, use, modification, disclosure, or destruction of your data except as necessary to provide you with the Services and any related services (such as support), to prevent or resolve service or technical problems, if required by law, or if otherwise mutually agreed to in writing.

    8. Payment, Refunds, Upgrades and Downgrades:
      1. The Service will be billed in accordance with the terms of your order form, and Service fees are non-refundable. There will be no refunds or credits for partial months of Service, no account activity or upgrade/downgrade refunds, except as referenced in your separate purchase order. Failure to make a payment by the due date set forth on the invoice may result in your access to the Service being suspended and/or canceled at Image Relay’s discretion.
      2. All fees charged are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes.
      3. Downgrading your Service may cause the loss of Content, features, or capacity of your Account. If you downgrade or cancel your Service without appropriate notice to Image Relay, Image Relay does not accept any liability for such loss and you agree to hold Image Relay harmless from any such loss.
      4. The fees for the Services are set forth in your applicable purchase order. You agree to pay all such fees, and you agree to all Services limits set forth in such purchase order, including, but not limited to, limits on users, user licenses, storage, and bandwidth allotments.

    9. Term; Termination:
      1. Your initial term of Service will be set forth in your order form (the “Initial Term”). Upon expiration of the Initial Term, your Services will automatically renew for successive terms as set forth in your applicable purchase order, unless either party provides written notice of its intention not to renew no less than 90 calendar days prior to the expiration of the current term. For the avoidance of doubt, if you continue to access and use the Services after the expiration of the Initial Term (or any subsequent renewal term), the then-current version of these Terms of Service will continue to apply.
      2. Image Relay may terminate your Services effective immediately upon written notice in the event of: (a) dissolution, liquidation, bankruptcy or insolvency of your entity; (b) your breach of any of these Terms of Service (as they exist in their most current form); or (c) your failure to timely remit all required Service-related payments. If the Services are terminated for any of the above reasons, you will not receive a refund on any prepaid amounts, Image Relay will immediately terminate your access to the Services, your Account will be deactivated, your Content will be irretrievably deleted, and all outstanding amounts owed to Image Relay will immediately become due and payable.
      3. Upon termination or nonrenewal of the Services those provisions of the Terms of Services which by their nature are meant to survive, shall survive.

    10. Changes to Services and Costs:
      1. Image Relay reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. Image Relay shall have no liability for any discontinuance(s): (i) lasting seven consecutive calendar days or fewer; (ii) arising from or related to your actions or inactions; or (iii) otherwise resulting from events outside of Image Relay’s reasonable control (including, but in no way limited to, electrical, internet, or telecommunications difficulties or outages, viruses, or sabotage events).
      2. Image Relay may increase the Services pricing (including annual subscription fees) automatically at the end of each contract year. Any such increases will not exceed ten percent (10%) over the immediately prior year’s fees unless otherwise agreed upon by and between the parties.

    11. API Terms:
      Any use of the API, including use of the API through a third-party product that accesses the Service, is subject to these Terms of Service and to the following terms:
      1. You expressly understand and agree that Image Relay shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Image Relay has been advised of the possibility of such damages), resulting from your use of the API or third-party products that access data via the API.
      2. Abuse or excessively frequent requests to Image Relay via the API may result in the temporary or permanent suspension of your Account's access to the API. Image Relay, in its sole discretion, will determine abuse or excessive usage of the API. Image Relay will make a reasonable attempt via email to warn you prior to suspension.
      3. Except as noted in a related Statement of Work, use of the API is limited to 5 requests per second and total monthly requests of 250,000 per Account.
      4. Image Relay reserves the right at any time to modify or discontinue, temporarily or permanently, your access to the API (or any part thereof) with or without notice.

    12. Disclaimer of Warranty:
      EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED TO YOU “AS IS”, WITHOUT ANY WARRANTIES OF ANY KIND. IMAGE RELAY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

    13. Indemnification:
      To the fullest extent permitted by applicable law, you agree to indemnify and hold harmless Image Relay and its officers, directors, principals, agents, partners, contractors, affiliates, and employees against and from any and all loss, liability, damages, claims, suits, demands, judgments, costs, and expenses (including attorneys’ fees) arising from: (a) any third-party demand or claim that any Content provided by you, or your use of this Service infringes trademark, patent or copyright of a third-party, or misappropriates trade secrets or violates any applicable law or these Terms of Service; or (b) any other act or omission of you in connection with these Terms of Service or the business relationship contemplated hereunder. Image Relay will reasonably notify you of any claim(s) or demand(s) that is subject to your indemnification, provided, however, that any delay in notification shall not relieve you of your obligation to indemnify Image Relay so long as such delay does not materially prejudice you in your defense of the claim.
      You may not effect any compromise or settlement of a claim without Image Relay’s prior written consent unless (x) there is no finding or admission of any violation of law or any violation of the rights of any person and no effect on any other claim that may be made against Image Relay, (y) the sole relief provided is monetary damages that are paid in full by you, and (z) the compromise or settlement includes an unconditional release of Image Relay, in form and substance satisfactory to Image Relay, from all liability regarding such claim. Image Relay shall have no liability with respect to any compromise or settlement effected without its written consent.

    14. Limitation of Liability:
      IMAGE RELAY SHALL HAVE NO LIABILITY TO YOU OR TO ANY OTHER THIRD PARTY FOR ANY DAMAGES, INCLUDING DAMAGES RESULTING OR ALLEGED TO RESULT FROM ANY DEFECT, ERROR, OMISSION, DOWNTIME, OR SECURITY BREACH IN THE SERVICE, OR AS A RESULT OF ANY INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY. UNDER NO CIRCUMSTANCES WILL IMAGE RELAY HAVE ANY LIABILITY TO YOU FOR, AND YOU HEREBY EXPRESSLY WAIVES, ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY DESCRIPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING OUT OF WARRANTY OR CONTRACT, NEGLIGENCE OR OTHER TORT, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL, LOSS OF DATA, FORESEEABLE BUSINESS LOSSES, LOSS OF PROFITS, AND RELIANCE DAMAGES. YOU AGREE THAT UNDER NO CIRCUMSTANCES WILL IMAGE RELAY’S LIABILITY HEREUNDER FOR ANY CAUSE EXCEED THE PURCHASE PRICE PAID BY YOU FOR THE PARTICULAR SERVICE(S) INVOLVED. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT WILL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.

    15. Essential Basis of the Bargain:
      You acknowledge that Image Relay has set its Service prices in reliance upon the limitations and exclusions of liability, the disclaimers of warranties, and your indemnity obligations set forth herein, that the same form an essential basis of the bargain between the parties, and THAT THE SERVICE PRICES WOULD BE HIGHER IF IMAGE RELAY WERE REQUIRED TO BEAR LIABILITY IN EXCESS OF THAT STATED HEREIN.

    16. Governing Law; Notice; Waiver of Class Action:
      These Terms of Service, and any dispute between you and Image Relay, shall be construed and interpreted in accordance with the laws of the State of Vermont, without regard to its conflict of laws provisions. Venue for any dispute or controversy hereunder shall be Chittenden County, Vermont, and the parties irrevocably consent to such venue, hereby waiving any objections based on conflicts of law principles or inconvenient forum.
      You agree to service of process on you by e-mail to the address you have submitted for the Service and by any other means permitted by law. Any notice to Image Relay must be emailed to legal@imagerelay.com. A printed version of these Terms of Service will be admissible in judicial and administrative proceedings to the same extent and subject to the same conditions as other documents and records originally generated and maintained in printed form.
      Where permitted under the applicable law, you agree that you may bring claims against Image Relay only in your individual capacity and not as a plaintiff or class member in any purported class or representative action. Unless Image Relay agrees, no action, or court of law, may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding against Image Relay. Per Section 17, this paragraph shall be deemed stricken in the event that it is illegal or unenforceable under applicable law.

    17. Severability:
      Any provision of these Terms of Service held to be invalid, illegal, or unenforceable shall be ineffective to the extent of such invalidity, illegality, or unenforceability without affecting the validity, legality, and enforceability of the remaining provisions hereof, which shall remain in full force and effect, and enforceable in accordance with its terms as if such provision(s) had not been included, or had been modified as provided below, as the case may be. To carry out the intent of the parties hereto as fully as possible, the invalid, illegal, or unenforceable provision(s), if possible, shall be deemed modified to the minimum extent possible and necessary to render such provision(s) valid and enforceable.

    18. Publicity:
      If you are an organizational entity, you hereby grant Image Relay your consent to publish your name and logo for marketing purposes.

    19. Assignment:
      Image Relay may assign, transfer, or otherwise dispose our rights and obligations under these Terms of Service, in whole or in part, at any time without notice. You may not assign your rights under these Terms of Service or transfer any rights to use the Service without the written consent of Image Relay.

    20. Entire Agreement:
      These Terms of Service and any other documents expressly referred to herein contain the entire understanding of the parties with respect to its subject matter. These Terms of Service supersede all prior agreements and understandings between the parties with respect to its subject matter.

    21. No Waiver:
      The failure of Image Relay to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision, nor shall Image Relay’s waiver in one instance constitute a continuing waiver.

    22. Attorneys' Fees:
      In the event that Image Relay takes legal action against you to enforce its rights under these Terms of Service, Image Relay shall be entitled to recover its reasonable attorneys’ fees from you.