MORGUEFILE TERMS AND CONDITIONS

Our Terms and Conditions in the right-hand column govern your use of our website, mobile phone application and services, and form a binding contract between us. The Explanatory Notes in the left-hand column are not a binding contract and are merely a summary reference of our terms and conditions for your convenience.

Simply put*

*You agree that these explanatory notes in this column DO NOT form a part of the terms and conditions and are not a binding agreement. These Explanatory Notes are merely a summary reference of our terms and conditions for your convenience.

TERMS AND CONDITIONS*

* You agree that these terms and conditions in this column are a binding contract between you and Morguefile, Inc. You may be asked to click and “I ACCEPT” button to confirm this as additional proof of your acceptance of these terms and conditions.

These terms and conditions are a binding contract between you and Morguefile. Your use of our site, app, and services is evidence that you agree to our terms and conditions.

WELCOME AND INTRODUCTION

Welcome to Morguefile! The following terms and conditions (the “Terms”) govern your (the “User” “you” or “your”) access to, and viewing and use of Morguefile Inc.’s (“Morguefile”, "we," "us," "our") website located at www.morguefile.com (the “Site”) and the Morguefile mobile phone application (the “App”). The Site and the App are collectively referred to as the “Platforms”. By accessing, viewing, and/or using the content, material, or services available on or through the Platforms, you indicate that you have read, understand, agree to, and intend to be legally bound by: these Terms, the Morguefile Privacy Policy, and the Braintree Terms of Use governing financial transactions available on certain portions of the Platforms. By accessing any of the Platforms, you represent that you are 18 years of age or older.

You must be at least 18 years old to view or use our platforms and services.

If you do not agree to these Terms, the Braintree Terms of Use, or the Morguefile Privacy Policy, or if you are under 18 years of age, you are not granted permission to access, view, or use the Platforms and must exit immediately. If you do not agree to these Terms, or if you are under 18 years of age, do not view, access, or use the Platforms.

We change these terms every so often. You must check them to see the changes. If you keep using our platforms after we make changes, you accept the changes.

Morguefile may change these Terms from time to time. Please review the Terms periodically. Your continued access to, and viewing and use of the Platforms and any content, materials or services accessible through them, after such posting or notification, which will take effect immediately (unless otherwise noted) means you accept any and all such modifications and updates. Morguefile reserves the right to, at any time, and from time to time, modify or discontinue (temporarily or permanently) the Platforms, the content, materials, and services accessible on and through the Platforms, or any part thereof. Morguefile shall not be liable to you or any other third party for any such modification, suspension or discontinuance of any of the foregoing, except as expressly provided herein.

We only provide the services stated in our terms. We owe you only a duty of ordinary care.

OUR RELATIONSHIP

Unless otherwise expressly agreed in writing, no fiduciary, quasi-fiduciary or other special relationship exists between you and Morguefile and/or its affiliates, parent companies, partners, subsidiaries, directors, principals, employees, and/or contractors (“Suppliers”). We owe you a duty of ordinary care. Any internal policies or procedures that Morguefile and its Suppliers may maintain in excess of reasonable commercial standards and general usage are solely for Morguefile’ and its Suppliers’ own benefit and shall not impose a higher standard of care than otherwise would apply in their absence. We are not a creditor, insurer, financial broker or institution, creditor or charitable organization. We merely provide the Services (defined herein) through our platforms in a hosting and administrative capacity only.

We are only an administrator. You can upload and download photos through our site subject to these terms.

OUR SERVICES

Morguefile is only an administrative platform that allows our Users to upload their photographs and images (“Pictures”) for other Users to download and use them subject to the terms and conditions stated in the “INTELLECTUAL PROPERTY AND LICENSE” section of these Terms.

Our general services are free of charge. We offer additional services for subscribers for a fee.

Morguefile offers two levels of access and services to its Users: General Services (defined below) for Users who access the publicly-accessible portions of the Platforms, and Subscription Services (defined below) for Users who subscribe to these additional services. Both levels of access to the General Services and the Subscription Services (collectively, the “Services”) are described below.

We offer these general services:

A. Generally Accessible Services
Morguefile allows general Users to (the “General Services”):

You can upload your own pictures, and download other Users’ pictures.

(1) Upload, display, offer for display, distribution, and use their Pictures (the “Photographers”) to other Users of the Platforms for download, display, distribution, use, and exploit the Photographers’ Pictures (the “Distributors”) for various uses, as set forth specifically herein and according to the terms of the License (defined below);

You can discuss topics related photography on our forum.

(2) Post comments solely related to photography to a general discussion forum and respond to other Users’ comments in such forum (the “Forum”); and

You can read articles we post about photography.

(3) Read various “Classroom” articles discussing photography, photograph composition, and similar topics related to photography (the “Articles”).

Comments posted on the forum are not our opinions. We may remove comments.

You recognize and agree that any comments, materials, and ideas posted to the Forum are the opinions of each User and do not reflect our opinions or beliefs. We reserve the right to remove any comments or materials posted to the Forum at any time in our sole discretion and for any reason, or no reason.

We also offer subscription services. Currently, subscribers can receive prompts from us for users to take new photographs based on the prompts.

B. Additional Subscription Services.
Morguefile also allows Users to register for and subscribe to certain additional Services through the Platforms not accessible to General Users (the “Subscription Services”), specifically (1) the ability to upload and share Pictures based upon certain descriptions, prompts, and requests for Pictures uploaded and/or sent to Subscription Users by Morguefile (each, a “Quest”), and (2) various other services, as described on our Platforms from time to time. Each Quest may have various parameters, suggestions, and/or requests. You recognize and agree that each Quest is a suggested prompt by Morguefile and that you have no obligation to participate in any Quest(s). You also recognize and agree that Quest does not and cannot monitor any Users’ participation in any Quest and cannot guarantee any Users’ safety by participating in any Quest. YOU FURTHER SPECIFICALLY AGREE (A) TO PARTICIPATE IN QUESTS SOLELY AT YOUR OWN RISK; (B) TO NOT STALK, INJURE, HARRASS, OR DEFAME ANY PERSON IN PARTICIPATING ON ANY QUEST; AND (C) TO NOT VIOLATE ANY PERSON’S RIGHTS OF PRIVACY AND/OR PUBLICITY IN PARTICIPATING IN ANY QUEST(S). You agree that Pictures taken as part of a Quest are subject to the terms of the License.

We may change the subscription services. If you continue to use and pay for the subscription services, you agree to our changes to these services.

You recognize and agree that the Morguefile Fees may change from time to time, in our sole discretion, the Subscription Services. Your continued use of the Platforms and the Subscription Services after paying the Fees (defined below) after any changes, constitutes your acceptance of the updated terms related to and governing the Subscription Services.

Currently, our services for general users of the site are free.

USER FEES AND COSTS

A. General Users.
Morguefile does not charge its General Users any fees or costs of any kind to use our General Services. However, you recognize and agree that we may change this policy in our sole discretion. In the event that we charge any fees for General Users to use our General Services, we will post a notification to the Platforms. Distributers are also not charged for their downloading, display, distribution, copying, using, monetizing, and/or otherwise exploiting the Pictures uploaded by Photographers, provided that the Distributers comply with the provisions of the License.

You can subscribe to extra services for a fee. The fee is stated on the Platforms.

B. Subscription Users.
Users who subscribe to the Subscription Services are charged various fees (the “Fees”), which are specified in the Platforms themselves.

We use Braintree to process fees for subscribers. We are not responsible for any delays or errors made by Braintree.

C. Fee Processing.
We currently use Braintree as a payment processor for the Fees. You agree that we may change our third party credit card processor (the “Processor”) at any time in our sole discretion. You further agree that we are not responsible for any delays, errors, and/or failures by our Processor and you agree to hold us harmless from any and all liability for any such delays, errors, and/or failures.

If you upload a picture, other users can download and use your picture anywhere and for any purpose, as long as you either:

(1) alter, modify, or change the picture itself in some way; OR

(2) if you don’t want to alter or modify the picture itself, you MUST (i) first get the photographer’s written permission to use the picture unaltered, (ii) accompany the picture with other material or content, and (iii) credit the photographer for their picture.

INTELLECTUAL PROPERTY AND LICENSES

A. License to Pictures.
If you are a User who qualifies as a Photographer, then by uploading any Picture(s) to the Platforms, you grant Morguefile a perpetual, irrevocable, world-wide, royalty-free, license to display, distribute, and use your Pictures on the Platforms and in our Services, as well as to sublicense to other Users who qualify as Distributers the right to display, distribute, copy, download, use, modify, alter, edit, and exploit (no matter the medium, anywhere in the world, for any use, and without any claim to any payment or royalties) your Picture(s), provided that, if you are Distributer of any Photographer’s Pictures, you agree that when you display, distribute, copy, and use a Photographer’s Picture(s), you MUST either:

(1) modify, change, and/or alter such Picture(s) itself/themselves in some way;

OR

(2) in the event that, as a Distributor, you would like to display, distribute, copy, or use any Picture(s) unmodified, then you must (i) first notify the Photographer through the Platforms and gain written permission for such use, (ii) accompany the unmodified Picture(s) along with other content (such as text or additional images) provided that you, and (iii) credit the Photographer for such use (the “License”).

For the avoidance of doubt, a Distributor will meet the modification, change, and alteration requirements through any modification, edit, or alteration of the Picture(s) itself/themselves, no matter how small.

Also for the avoidance of doubt, a Distributor will meet the accompanying requirement by including other original material such as other images, or written text (i.e. in an article).

You will not use our platforms, or any content or pictures on them for any illegal, unlawful, or other use prohibited by our terms.

B. No Injurious or Illegal Uses.
By accessing and viewing the Platforms (whether as a General User or a Subscription User), you represent and warrant to Morguefile that you will not use (1) the Platforms, (2) any Materials contained on the Platforms, and/or (3) the Services accessible on or through the Platforms, for any purpose that is either unlawful, illegal, injurious, and/or prohibited by these Terms.

Your pictures must be owned by you, can’t violate any person’s or entity’s rights, and must comply with these terms.

C. No Infringement.
You further represent and warrant to us and all other Users that your Pictures: (1) are original, (2) wholly owned by you, (3) do not infringe any intellectual property rights of any third party, including, but not limited to, copyrights, trademarks, and trade dress rights, (4) do not violate any person’s right of privacy and/or right of publicity, (5) do not violate any law, regulation and/or rule of any kind applicable to your Pictures and use of the Platforms, and (6) do not violate these Terms.

If you think that either (1) your pictures are being used improperly, or (2) a picture uploaded on our platforms infringes your rights, please contact us. We can’t guarantee any specific resolution. We may terminate your access if you repeatedly violate others’ rights.

D. Copyright Claims.
If you believe that any of your Pictures are being displayed, distributed, used, and/or exploited in any way contrary to these Terms and the License (each, a “Claim”) please notify us at [email protected] We take all Claims seriously and will use commercially reasonable efforts to resolve such Claims, by responding to all such notices, including as required or appropriate by removing any disputed or infringing material, or disabling all links to the infringing material until such Claims are resolved. You recognize and agree that we may not resolve all Claims and that you may have to resolve such Claims on your own, independently of Morguefile. In the event any User repeatedly infringes the copyrights or other intellectual property rights of Morguefile or other Users, we may, in our sole discretion, terminate or deny access such User access to and use of the Platforms. In the case of such termination of a User’s access and/or account, you recognize and agree that we will have no obligation to provide a refund of any amounts previously paid to us.

We own all of our own content and intellectual property rights posted on our platforms. You may not use our content and intellectual property rights in any way without our prior written consent.

E. Our Intellectual Property Rights.
Morguefile and its Suppliers do not grant any license or other authorization to you to display, distribute, share, sell, license, copy, use, or otherwise exploit: our own: (a) trademarks, logos, service marks, trade dress rights, or other source-identifying symbols or devices, whether registered or unregistered, (the “Morguefile Trademarks”); (b) text, images, designs, graphics, and/or other copyrightable material, whether registered or registered (the “Morguefile Copyrights”), and/or (c) design or utility patents, whether registered or registered (the “Morguefile Patents”), by placing them on the Platforms, or otherwise. The Morguefile Trademarks, the Morguefile Copyrights, and the Morguefile Patents are collectively referred to the “Morguefile Materials”. You agree to not display, use, display, copy, distribute, infringe on, counterfeit, or otherwise exploit the Morguefile Trademarks or Morguefile Copyrights, except as explicitly authorized by Morguefile in writing. Morguefile and its Suppliers do not grant any license or other authorization to you of their design or utility patents, whether registered or unregistered (the “Morguefile Patents”) by providing you access to the underlying material of such Patents, through the Platforms and the Services. You agree to not display, use, copy, distribute, reverse engineer or otherwise exploit the Morguefile Patents except as expressly authorized within these Terms.

We can’t control what our other users do. You agree to not hold us liable for other users who don’t follow these terms, or applicable laws.

DISCLAIMERS

A. User Conduct.
You recognize and agree that Morguefile is an administrative platform only and thus has no control over the conduct of, or any information provided by, any Users of our Platforms and Services. Morguefile hereby disclaims all liability relating to any User’s use and/or misuse of any Pictures (defined below), including those uploaded and/or owned by you. You further recognize and agree that Morguefile cannot and does not guarantee that: (1) any Pictures will obtain any certain amount of publicity, exposure, distribution, and/or specific use of any kind, if any at all; (2) any Pictures you upload will be used by any other User(s) in accordance to these Terms; and/or (3) any Pictures you download and/or use from this Platforms comply with these Terms, are free from any encumbrances or claims, and/or are free of any claims of intellectual property infringement by either any Photographers and/or any third party or parties. We specifically disclaim any and all responsibility and liability to verify and/or ensure that any Users comply with these Terms, including, but not limited to, using the Pictures (y) in accordance with these Terms, and/or (ii) in accordance with any applicable laws. You recognize and agree that you and each other User is solely responsible for his, her, or its compliance with these Terms and all applicable laws.

You agree to not engage in any of the activities described in this section.

USER CONDUCT

A. User Restrictions.
By viewing, accessing and using the Platforms and the Services, you agree that you will not do any of the following:

(1) Restrict or inhibit any other User in any way from viewing, accessing, using and/or enjoying the Platforms, the Materials, and/or the Services; or

(2) Post or transmit any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, harassing, profane, threatening, abusive, discriminatory, hateful, offensive, or otherwise objectionable information, images, material, and/or Pictures of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or foreign law, including without limitation the U.S. and international export control laws and regulations; or

(3) Post or transmit any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, investment schemes, or other unsolicited commercial communication, or engage in spamming or flooding; or

(4) Post or transmit any information, software, or material which contains a virus, trojan horse, worm and/or other harmful component; or

(5) Post, publish, transmit, reproduce, distribute or in any way exploit any User Content (including, but not limited to, any User’s Location Data or Personal Information) User Trademarks, Morguefile Content, Morguefile Trademarks, Morguefile Patents, and/or the software used by Morguefile to provide the Services, for commercial purposes (other than as expressly permitted by the respective owner of the same); or

(6) Use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Platforms, the Materials contained therein, and/or the Services accessed thereon, other than as Morguefile expressly permits in writing; or

(7) Attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up the Platforms and/or the Services; or

(8) Express or imply that any statements you make are endorsed by Morguefile, without Morguefile’ prior written consent; or

(9) Impersonate any person or entity, whether actual or fictitious, including, but not limited to, any other User, or employee or representative of Morguefile; or

(10) Disparage, defame, and/or malign any other User and/or Morguefile; or

(11) Promote violence, weaponry of any kind, war, conflict, narcotics, illegal substances, gambling, hate, pornography, criminal activities, and/or any illegal activity of any kind; or

(12) Misuse, or otherwise use any Pictures for any reason other than permitted by these Terms; or

(13) Use our Platforms, the Pictures, and/or the Services to stalk, track, monitor, or harass any person for any reason.

We do not have a duty to monitor our platforms. However, we can monitor our platforms electronically and disclose user information when legally required, to operate our platforms, and to protect ourselves and our users

B. Platforms Monitoring / Other Users’ Use.
You recognize and agree that Morguefile has no obligation or duty to monitor the Platforms. However, you agree that Morguefile and its Suppliers have the right to monitor the Platforms electronically, from time to time, and to disclose any information as necessary or appropriate to: (1) satisfy any law, regulation or other governmental request; (2) operate the Platforms and the Services properly; and/or (3) protect itself, its Suppliers and/or its Users. Morguefile further reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, fraudulent, inappropriate, or in violation of these Terms.

You must provide accurate information when prompted. If you don’t provide accurate information, we can block your access to our platforms and services.

USER REGISTRATION AND USER INFORMATION

A. Accurate Information.
YIn consideration of your (1) access to and viewing of the Platforms, (2) access to and viewing of the Materials contained on and/or displayed through the Platforms, and (3) ability to view, access and use the Services, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by any registration form(s), input pages, registration forms, and/or billing information posted on the Platforms, as applicable, and (ii) to maintain and update all such information to keep it true, accurate, current and complete. If any information provided by you is untrue, inaccurate, not current or incomplete, Morguefile has the right to prevent your access to the Platforms and/or the Services.

We can verify your identity by asking for information. You agree that if we can’t verify your identity, we can block your access to our platforms and services.

B. Verification.
You agree that, as a User, we may verify your identity at any time during or after your use of the Platforms or the Services. You hereby authorize us to make any inquiries we consider necessary to validate your identity, which may include asking you for further information, requiring you to provide your full address, and/or requiring you to take steps to confirm ownership of your email address or financial instruments, or verifying information you provide against third party databases or through other sources. If you either (1) do not provide any such requested information, as prompted, if at all, and/or (2) Morguefile cannot verify your identity, you agree that Morguefile may refuse to allow you to access, view, and/or use the Platforms and the Services.

We may ask you to create a password and login ID for certain services. You alone have to maintain the confidentiality of your password and login ID.

C. Login and Password.
Morguefile may require you to create a login and password to access certain portions of the Services. You agree and understand that you are solely responsible for maintaining the confidentiality of any of your personal login and access information, including, but not limited to any password(s), LoginID(s), e-mail address(es), and/or mobile number(s) that allow you to access and use the Platforms and/or the Services.

Some of our services are able to be used on a mobile phone, or may require Internet access. We aren’t responsible for any errors or delays in these devices or access tools. We can’t guarantee that your mobile phone or Internet will allow you to access our platforms and services at all times or at any specific time.

D. Use with Your Mobile Device.
Access to and use of (1) the Platforms, (2) the Materials contained on the Platforms, and/or (3) the Services may be available through a compatible mobile device, Internet and/or network access, and may require software and/or other equipment. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees as well as the terms of your agreement with your mobile device and telecommunications provider. MORGUEFILE MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO: (i) THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SITE AND/OR THE SERVICES AT ANY TIME, OR FROM ANY LOCATION; (ii) ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND (iii) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH THE SITE AND/OR THE SERVICES.

We are not liable for any delays or inaccuracies related to our platforms and Services.

E. Interruption.
You recognize and agree that neither Morguefile nor its Suppliers will be liable to you in any way for (1) the termination, interruption, delay or inaccuracy of the Platforms, and/or (2) the inability to, or the delay in, viewing, accessing, and/or using any of the Services due to any such termination, disruption, delay, or inaccuracy.

We typically communicate with our users electronically, usually through email. You agree to allow us to communicate this way.

ELECTRONIC COMMUNICATIONS

A. Emails.
Morguefile and its Suppliers may, from time to time, (1) provide you with a way to contact us through the Platforms, or (2) request that you provide us with a way to contact you through email before, during, or after any registration process, so that we may communicate electronically. All such electronic communications will be received or otherwise recorded by Morguefile and its Suppliers, and are subject to archival, monitoring or review by and/or disclosure to, someone other than the recipient. All such electronic communications may involve the electronic transmission you provided to us of information that you may consider to be personal information. You agree and consent to such transmission of such information. You agree not to use e-mail to transmit any confidential personal information other than as requested by Morguefile and its Suppliers.

You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Platforms. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing.

You agree to allow us to communicate this way and to record all information in these communications.

B. Recording.
In connection with your use of the Platforms and Services accessible through the Platforms, you acknowledge and consent to the taping or any form of recording of any communication (electronic or otherwise) between you and Morguefile, its Suppliers, and/or their representatives or agents. You acknowledge and consent to the recording, retention and use by Morguefile and its Suppliers of any and all information and data contained in (1) any communication with Morguefile and its Suppliers, and (2) any information input posted on or through the Platforms and Services.

We may allow third parties to offer their services by placing ads or offers on our platforms. You agree that these third parties have their own terms and conditions and that you agree to them if you use these third party services.

THIRD PARTY SERVICES

In connection with your access to and viewing of the Platforms, you may be made aware of other services, products, offers and promotions provided through third parties, and not by Morguefile (“Third Party Services”). If you decide to use Third Party Services, you are responsible for reviewing and understanding the terms and conditions governing any Third Party Services. You agree that the third party, and not Morguefile or its Suppliers, is responsible for the performance of the Third Party Services. This may contain or reference links to third parties’ websites and platforms. Some of those links are provided as a convenience only. The inclusion of any link is not and does not necessarily imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by Morguefile of any information contained in any third party’s website or platform. In no event will Morguefile be responsible for the information contained in such third party website or platform or for your use of or inability to use such website or platform. Access to any other website or platform is at your own risk, and you should be aware that linked websites or platforms may contain terms and privacy policies that are different from those of Morguefile. Morguefile and its Suppliers are not responsible for such provisions and expressly disclaim any and all liability for the same.

You will hold us harmless and not liable for any claims or lawsuits relate to your use of the platforms and our services.

INDEMNIFICATION

You agree to defend, indemnify and hold Morguefile and its Suppliers harmless from any and all claims, liabilities, costs and expenses (no matter how arising), including, but not limited to, reasonable attorneys' fees, arising in any way from (1) your use of the Platforms, the Materials contained on the Platforms, the Pictures, and the Services, (2) your experience on the Platforms and/or with the Services, whether by you or users of your account, and/or (3) any third party claims against you resulting from your use of any Pictures.

If we are liable to you for any of our actions, we will not owe you any monetary damages over $250.

LIMITATION OF LIABILITY

THIS SECTION IS A LIMITATION OF OUR LIABILITY TO YOU. IT SPECIFICALLY LIMITS THE EXTENT TO WHAT WE MAY OWE YOU IN THE EVENT WE ARE LIABLE FOR ANY ACTION BY YOU AGAINST US. PLEASE READ THIS SECTION CAREFULLY.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MORGUEFILE AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR FOR DAMAGES RELATING TO TELECOMMUNICATION FAILURES, LOSS, CORRUPTION, SECURITY OR THEFT OF DATA, VIRUSES, SPYWARE, OR THE LIKE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF MORGUEFILE AND/OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MORGUEFILE AND YOU. MORGUEFILE AND ITS SUPPLIERS WOULD NOT BE ABLE TO HAVE PROVIDED THE SITE, THE MATERIALS AND/OR THE SERVICES WITHOUT SUCH LIMITATIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, MORGUEFILE’S LIABILITY TO YOU FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF $250.00.

These terms are governed by New York law.

GOVERNING LAW

These Terms will be governed by New York law as applied to agreements entered into, and to be performed entirely within, the state of New York, without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction, and applicable federal law. Headings and the “explanatory notes” to the right of these Terms are included for convenience only, and shall not be considered in interpreting these Terms.

Any legal disputes between us will go to arbitration instead of litigation in a court. This may limit your rights. Please consult legal counsel to determine if you are willing to agree to this provision.

ARBITRATION

IT IS IMPORTANT THAT YOU READ THIS ARBITRATION CLAUSE. IT PROVIDES THAT YOU MAY BE REQUIRED TO RESOLVE ANY CLAIM OR DISPUTE THROUGH ARBITRATION, EVEN IF YOU WOULD PREFER TO LITIGATE THE CLAIM IN COURT. YOU ARE GIVING UP THE RIGHTS YOU MIGHT HAVE TO LITIGATE SUCH CLAIMS BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL THE DECISION, MAY NOT BE AVAILABLE IN ARBITRATION OR MAY BE MORE LIMITED. YOU SHOULD CONSULT LEGAL COUNSEL TO DETERMINE WHETHER THIS ARBITRATION CLAUSE IS APPROPRIATE FOR YOU.

Any dispute, controversy or claim arising out of, or relating to, in any way, these Terms and your access to and use of the Platforms and the Services, including without limitation any dispute concerning the construction, validity, interpretation, enforceability or breach of these Terms, shall be exclusively resolved by binding arbitration upon a party’s submission of the dispute to arbitration. The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after two years from when the aggrieved party knew or should have known of the controversy, claim, dispute or breach.

This agreement to arbitrate under this section shall be specifically enforceable. We may apply to any court with jurisdiction for interim or conservatory relief, including without limitation a proceeding to compel arbitration. The arbitration shall be conducted in accordance with the American Arbitration Association rules. The arbitrator shall have at least ten (10) years of experience in the field of online services and platforms and also shall have served as an arbitrator at least three (3) times prior to their service as an arbitrator in this arbitration. The arbitration shall be conducted in accordance with the then existing Commercial Rules of the American Arbitration Association

The arbitration shall be conducted in New York, New York, USA. The laws of the state of New York shall be applied in any such arbitration proceedings, without regard to principles of conflict of laws.

Except as may be required by law, you nor your representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of Morguefile. The arbitrator shall not be entitled to issue injunctive and other equitable relief.

The cost of the arbitration proceeding and any proceeding in court to confirm or to vacate any arbitration award, as applicable (including, without limitation, reasonable attorneys’ fees and costs), shall be borne by the unsuccessful party, as determined by the arbitrators, and shall be awarded as part of the arbitrator’s award. It is specifically understood and agreed that any party may enforce any award rendered pursuant to the arbitration provisions of this section by bringing suit in any court of competent jurisdiction. The parties agree that the arbitrator shall have authority to grant injunctive or other forms of equitable relief to any party. This section shall survive the termination or cancellation of these Terms.

Each party to an arbitration proceeding shall pay its own proportionate share of arbitrator fees and expenses and the arbitration fees and expenses of the American Arbitration Association. The arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his or her sole discretion.

You also agree to the terms of our privacy policy by using our platforms and services.

PRIVACY POLICY

By accessing, viewing, and using the Platforms and the Services, you also agree to accept the Morguefile Privacy Policy, as updated from time to time by Morguefile.