TERMS OF SERVICE / EULA
The following are the terms and conditions (“Terms”) that apply to all accounts and users of ProPhoto’s products and services (“Services”). The Services provided by ProPhoto include:
- Usage of the ProPhoto software on a user’s own self-hosted website (“Self-Hosted ProPhoto”), or
- Web Hosting and usage of the ProPhoto software on a website that is hosted by ProPhoto for the user (“Fully Hosted ProPhoto”).
IMPORTANT! Please read the Terms of this End-User License Agreement (“EULA”) carefully before using or accessing any of the Services provided by ProPhoto. By checking the box to accept the Terms of this EULA during checkout, or by using or accessing the Services provided to you by ProPhoto, you agree to accept all Terms of the EULA.
This EULA is a legal agreement between you (either an individual or an entity, “you”) and Downshift, LLC (“Downshift”, “we”, “us”, or “our”), owner of ProPhoto and provider of all ProPhoto Services. It is enforceable against you and any legal entity that subscribes to ProPhoto on whose behalf it was used. If you do not agree to the Terms of this EULA, do not use or access any of ProPhoto’s Services.
Downshift reserves the right, in our sole discretion, to make changes or modifications to this EULA at any time and for any reason. We will alert you about any changes by updating the “Last updated” date of this EULA, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Terms to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised EULA by your continued use of any Services after the date such revised Terms are posted.
1. GRANT OF LICENSE
For Self-Hosted ProPhoto users, Downshift grants you a non-exclusive license to download, install, and use the ProPhoto software consistent with the express Terms of the EULA. This includes the right to install and use the ProPhoto software on up to two different websites concurrently. For Fully Hosted ProPhoto users, Downshift grants you access to use the ProPhoto software on each individual website you agree to have hosted for you by ProPhoto, consistent with the Terms of the EULA.
2. WEB HOSTING SERVICES
For users of the Fully Hosted ProPhoto Service, Downshift will host your website(s) on a web hosting platform consistent with the Terms of the EULA. This web hosting platform will utilize the servers and services of a third party web host. By subscribing to the Fully Hosted ProPhoto Service, you agree to let us host your website on these third party servers.
(a) Content. By utilizing the Fully Hosted ProPhoto Service, you agree to grant Downshift a non-exclusive right and license to host and store any content that is created or provided by you via the Service. Any content created or provided by you via the Service is owned by you, the end-user of the Service. If we determine that any content of a user’s site utilizing Fully Hosted ProPhoto is not their own work and/or has been copied from a website that they do not own, we reserve the right to remove that content from the site and/or terminate the user’s Service.
(b) Backups. Dowshift’s web hosting platform should regularly backup customer’s websites and should be able to restore a prior version of a website if requested by the customer. However, this does not guarantee that there will never be a loss or corruption of a customer’s website data. Backups could be corrupted if there was corrupted data prior to a backup, or if changes were made during the time when a backup was being performed. While we will try and support any known issues related to backups, we maintain no liability for the integrity of the backups or failure to successfully restore the website to a usable state.
(c) Cancellation. If a user of Fully Hosted ProPhoto decides to cancel this Service, you agree to notify Downshift, at which point, you will have 14 days to download any items from their site. After the 14 day period has ended, Downshift will delete all items related to the site, including content and backups. Once deleted, the site will not be able to be restored.
3. BILLING, FEES AND CANCELLATION
ProPhoto’s Services are renewed and billed on a monthly basis by a third party payment processor (PayPal). When subscribing to any of ProPhoto’s Services (Self-Hosted ProPhoto or Fully Hosted ProPhoto), you agree to be billed on the date of signup and have your Service renewed and billed automatically on the same date of every following month without requiring your prior approval for each recurring charge. (For example, if you subscribe to a Service on March 12, you will be billed automatically on March 12, April 12, May 12 and so forth.) Billing will always be done on a full month basis; no pro-rata billing or refunds will be provided for partial month utilization of Services.
Sales tax may be added to the price of any billing as deemed required by us.
Downshift reserves the right to charge additional fees to users of Fully Hosted ProPhoto that utilize more storage and/or bandwidth than is allotted. If we determine that additional fees are required, we will notify you directly before the next billing cycle.
Fees are subject to change at any time. Downshift will notify all customers of any changes to fees prior to taking effect. Changes to fees will not be applied retroactively and if you do not agree to fee changes, you may cancel at any time before the next billing date.
You agree to provide current, complete, and accurate purchase and account information for all Services to which you subscribe. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed.
If there are any issues when a monthly billing is processed (e.g. credit card expiration), we will make every attempt possible to contact you directly and get the information needed to bill correctly. Once contacted, you will have 14 days to provide the information requested, otherwise, we reserve the right to end your Service and delete all items related.
If a user decides they would like to cancel their ProPhoto Service at any time, you agree to contact Downshift directly with your request. Your Service will be cancelled and no future monthly billings will occur beyond the most recent month billed. No refunds will be provided for cancelled Services.
4. REFUNDS FOR ADD-ON DESIGNS
No refunds or exchanges will be provided by Downshift for purchases made from the ProPhoto Design Store. Designs sold in the store are owned and sold by third party designers, not Downshift. Make sure you have carefully evaluated the demo site for a design before purchasing.
5. SUPPORT SERVICES
Downshift may provide you with support services (“Support Services”) related to the ProPhoto software (Self-Hosted ProPhoto and Fully Hosted ProPhoto) and webhosting (Fully Hosted ProPhoto only). Any supplemental software code provided to you as part of the Support Services shall be considered part of ProPhoto and subject to the terms and conditions of this EULA.
We will provide limited Support Services for users of Self-Hosted ProPhoto. Support services PROVIDED for users of Self-Hosted ProPhoto include, but are not limited to:
- Updating the ProPhoto software to ensure compatibility with newer versions of WordPress,
- Updating the ProPhoto software to ensure compatibility with standard web servers
- Fixing any bugs in the ProPhoto software that prohibit users from having the software function as intended.
- Access to ProPhoto’s library of online support guides.
Support services NOT PROVIDED for users of Self-Hosted ProPhoto include, but are not limited to:
- Answering questions from users about how to use the ProPhoto software, how the ProPhoto software works, or how to achieve a desired result. Users will instead need to refer to the ProPhoto tutorial guides provided.
- Ensuring that the software is compatible with a user’s particular hosting server setup.
- Ensuring that the software is compatible with a user’s WordPress plugin or 3rd party integration.
6. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
(a) Footer credit links. Except as otherwise provided, you shall not remove or alter any footer credit links on your installation or use of the ProPhoto software. Removal or altering of the footer credit links will void all Support Services, future upgrades, and may constitute a material breach of this EULA. Notwithstanding, if you have purchased a footer link removal key for the ProPhoto software, you may remove or alter the footer credit links.
(b) Unauthorized Use. You shall not modify, copy, duplicate, make derivative works, distribute, sell, rent, lease, lend, assign, convey, license, or sublicense the ProPhoto software or any of its individual files or authorize any portion of ProPhoto to be copied onto another individual or entity computer except as is expressly permitted under this EULA.
(c) Prohibition on Reverse Engineering, Decompilation, and Disassembly. You shall not reverse engineer, decompile, or disassemble the ProPhoto software, except and only to the extent that such activity is expressly permitted by tutorials and documentation for ProPhoto as found on the website: https://pro.photo.
(d) Prohibited Use. You shall not use any ProPhoto Services for any of the following purposes:
- Any use that appeals to the prurient interest (as defined below) and as determined by DownShift in its sole and complete discretion;
- Any use that lacks serious literary, artistic, political, or scientific value as determined by DownShift in its sole and complete discretion; or
- Any use that describes sexual conduct in a patently offensive way as determined by the DownShift in its sole and complete discretion.
Prurient interest means a shameful, morbid interest in nudity, sex, or excretion.
(e) Compliance with Applicable Laws. You agree to comply with all applicable laws regarding use of any ProPhoto Services.
7. OTHER LICENSING RIGHTS
The parties acknowledge that some aspects of source code that is licensed under the GNU General Public License, Version 2 (the “GPL”) has been incorporated into files that are part of the ProPhoto software. You acknowledge that DownShift has complied in all respects with the terms and conditions of the GPL, including but not limited to providing you with machine/readable source code of the ProPhoto software. As a condition of your acceptance of the EULA, you further acknowledge: the ProPhoto software is a separate and independent work from any program governed by the GPL; DownShift has a copyrightable interest in the ProPhoto software; it is not a derivative work of any program or work under the GPL; and the ProPhoto software is not otherwise subject to the terms and conditions of the GPL.
DownShift may terminate this EULA at its sole discretion if you fail to comply with the terms and conditions of this EULA. In such an event, you must destroy all copies of the ProPhoto software in your possession. If you are using the Fully Hosted ProPhoto, upon termination of the agreement, we will provide you with 14 days to download any content from your hosted website. After 14 days, we will delete the hosting account and any content stored on the web hosting servers, including any backups.
If we terminate or suspend your Service for any reason, you are prohibited from subscribing to any Service again under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your Service, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
9. INTELLECTUAL PROPERTY.
All title, including but not limited to copyrights, in and to the ProPhoto software and any copies thereof are owned by Downshift. All title and intellectual property rights in and to the content which may be accessed through use of the ProPhoto software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. Except as otherwise provided, this EULA grants you no rights to use such content. All rights not expressly granted are reserved by Downshift.
6. NO WARRANTIES.
Downshift expressly disclaims any warranties for the ProPhoto Services. The Services are provided as is, without fault of any kind, without any express or implied warranty that exist by statute, common law, custom, usage, or otherwise as to any matter, including, but not limited to performance, security, non-infringement or third party rights, integration, merchantability, quiet enjoyment, satisfactory quality or fitness or a particular purpose. We do not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the Services. Downshift further expressly disclaims any warranty or representation to you or to any third party. The provisions of this paragraph will survive the termination of the EULA, but this will not imply or create any continued right to use the ProPhoto Services after termination of the EULA.
7. LIMITATION OF LIABILITY.
In no event shall Downshift be liable for any loss, claim, damages or cost (including, without limitation, lost profits, business interruption, consequential, indirect or incidental damages, or lost information) arising out of or related to the use of or inability to use ProPhoto’s services, even if Downshift has been advised of the possibility of such damages. In no event will Downshift be liable for loss of data or for indirect, special, incidental, consequential (including lost profits), other damages based in contract, tort or otherwise. Downshift shall have no liability with respect to the content of the ProPhoto software or any part thereof, including but not limited to error omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information. The foregoing exclusions apply to the extent permitted by applicable law in your jurisdiction.
Downshift’s aggregate liability under or in connection with the EULA will be limited to the amount paid for any Services up to 12 months, if any. This limitation will apply even in the event of a fundamental or material breach of this EULA.
You agree to indemnify, hold harmless and defend DownShift, its shareholders, directors, officers, employees, and agents from and against any loss, damage, claims or lawsuits, including reasonable attorneys fees and costs that arise or result from the use of any ProPhoto Services.
The EULA represents the entire agreement between the parties and it supersedes any prior or contemporaneous representation, proposal, understanding, or agreement. This EULA is governed by and construed in accordance with the substantive law in force in the State of Michigan regardless of where ProPhoto Services are purchased and used and where the ProPhoto software is downloaded, installed or used. In resolving any dispute relating or arising out of this EULA, you consent to exclusive jurisdiction in the Federal Court for the Western District of Michigan. This EULA will not be governed by the conflict of law rules of any jurisdiction in the United Nation Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of this EULA is found void and unenforceable, it will not affect the validity of the balance of this Agreement which will remain valid and enforceable according to its terms and conditions. This EULA may only be modified in a writing signed by an authorized officer of DownShift. You agree that ProPhoto will not be shipped, transferred or exported into another country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if ProPhoto is identified as an export controlled item under the Export Laws, you represent and warrant that you are not a citizen of, or located within, any embargoed or otherwise restricted nation and that you are not otherwise prohibited under the Export Laws from receiving ProPhoto. All rights to use ProPhoto are granted on condition that such rights are forfeited if you fail to comply with the terms of this EULA.
Last updated August 18, 2020