SmugMug Partner Program Terms and Conditions

Updated -

SmugMug Partner Program Terms & Conditions
Last Updated: October 17, 2014
 
These SmugMug Partner Program Terms and Conditions (“Terms”) govern your participation in the SmugMug Partner Program. Before joining or applying to our SmugMug Partner Program, please carefully read these Terms. As a participant (or prospective participant) in the SmugMug Partner Program, you are required to follow these Terms and to keep your own employees, agents and contractors in compliance with these Terms. We’ve written them for real people--avoiding legalese as much as possible--to keep them clear, understandable, and easy on the eyes.
 
By participating in the SmugMug Partner Program, or clicking that you “agree”, “accept” or “continue” when prompted, you agree to be bound by these Terms and all other SmugMug policies, guidelines, documents and materials that we make available to you in connection with your participation in the SmugMug Partner Program. If you do not consent to these Terms, you are not permitted to participate in the SmugMug Partner Program. If you are signing up to the SmugMug Partner Program on behalf of a company or other entity, you represent and warrant that you are an authorized representative of such company or entity with the right to bind such company or entity to these Terms. You further represent and warrant that you are at least 18 years of age or older.
 
These Terms only govern the relationship between you and SmugMug in connection with your participation in the SmugMug Partner Program. Please refer to the applicable agreement between you and ShareASale for all terms and conditions that govern your relationship with ShareASale.
 
In addition to the SmugMug Partner Program, SmugMug operates a refer-a-friend program which enables SmugMug users to earn credits by distributing unique links to prospective customers (“Refer-a-Friend Program”).  More information about the Refer-a-Friend Program is available at //help.smugmug.com/customer/portal/articles/93326-does-smugmug-offer-a-refer-a-friend-program-?b_id=1644. You are not permitted to participate in both the SmugMug Refer-a-Friend Program and the SmugMug Partner Program. If SmugMug determines that you have registered for both the SmugMug Partner Program and the Refer-a-Friend Program, SmugMug may, at its discretion, terminate your participation in either or both programs.
 

Definitions

As used in these Terms: (a) “SmugMug”, “we”, “us”, or “our” refers to SmugMug Inc. and our respective employees, agents, affiliates and contractors; (b) ”you” or “your” means the SmugMug Partner Program participant who has agreed to be bound by these Terms; (c) “our website” means the SmugMug website located at www.smugmug.com, www.cameraawesome.com or any other website that is owned or operated by or on behalf of SmugMug; (d) “your website” means any websites that you own or operate and that link to our website and/or any other website that you use to promote the SmugMug Services as permitted by these Terms; (e) ”commission” means any fees that you earn in connection with your participation in the SmugMug Partner Program; (f) “SmugMug Partner Program” means the SmugMug marketing program operated and managed by ShareASale; (g) “SmugMug Services” means SmugMug’s subscription-based online photography and video sharing services available via our websites; (h) ”ShareASale” means the third-party referral program management service used by SmugMug to operate and manage the SmugMug Partner Program available at www.shareasale.com; (i) “ShareASale Interface” means your SmugMug Partner Program homepage operated and managed by ShareASale that contains commission payment information and other SmugMug Partner Program materials; (j) ”Prospective Customer” means any visitor to your website or other individual to whom you promote the SmugMug Services in connection with your participation in the SmugMug Partner Program.
 

Enrollment

The purpose of the SmugMug Partner Program is to permit you to promote the SmugMug Services to Prospective Customers and, in exchange, earn commissions in connection with such promotional activities. In order to participate in the SmugMug Partner Program, you must first submit an application to SmugMug via the ShareASale website. Your application must include all information requested by SmugMug and ShareASale, including information about your website, links to any website that you intend to use in connection with the SmugMug Partner Program, your website’s visitor demographics, your contact information and your website’s traffic statistics. After receiving your application, we will review your application materials (usually within two business days) and notify you by email of your acceptance or rejection into our SmugMug Partner Program. We reserve the right to reject your application for any reason, and encourage you to contact us with any questions regarding your application.
 
It is your responsibility to ensure that the information in your application and otherwise associated with your SmugMug Partner Program account, including your email address and other contact information and identification of your website, is at all times complete, accurate and up-to-date. We will send notifications, approvals and other communications relating to the SmugMug Partner Program and these Terms to the email address then-currently associated with your SmugMug Partner Program account. You will be deemed to have received all notifications, approvals and other communications sent to the email address associated with your account, even if that email address is no longer current.
 

Your Website Requirements

You are solely responsible for your website, including the development, maintenance and technical operation of your website and all materials and content that appear on your website. At all times during your participation in the SmugMug Partner Program, your website must not:
  1. Infringe on SmugMug’s or any third party’s intellectual property, publicity, privacy or other proprietary rights.
  2. Violate any applicable law, rule, or regulation.
  3. Contain any content that is threatening, harassing, defamatory, obscene, harmful to minors, or contain nudity, pornography or sexually explicit materials.
  4. Contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines intended to damage, interfere with, surreptitiously intercept or expropriate any system, data, or personal information.
  5. Be directed toward children under 13 years of age, as defined by the Children’s Online Privacy Protection Act (15 U.S.C. §§ 6501-6506) and any regulations promulgated thereunder.
  6. Contain software or use technology that attempts to intercept, divert, or redirect internet traffic to or from any other website.
Your website must accurately and adequately disclose, either through a privacy policy or otherwise, how you collect, use, store and disclose data collected from Prospective Customers, including a disclosure, where applicable or appropriate, that third parties (including us and other advertisers) may serve content and advertisements, collect information directly from Prospective Customers, and place or recognize cookies on visitors’ browsers.
 

Linking to Our Website

After you have been accepted into the SmugMug Partner Program, we will make certain links and banner ads to our websites available to you through the ShareASale Interface (“Links”). Links are customized for use in connection with the SmugMug Partner Program and permit the tracking, reporting and accrual of all commissions that you may be entitled to in connection with your participation in the SmugMug Partner Program. By participating in the SmugMug Partner Program, you consent to us and ShareASale monitoring, using and disclosing information about your website and Prospective Customers in connection with your display of Links on your website. Further, you must:
  1. Only use Links in exactly the form provided to you through the ShareASale Interface. You are not permitted to manipulate or change the Links in any manner.
  2. List all domains of your websites that currently contain Links in your SmugMug Partner Program profile on the ShareASale Interface.
  3. Not copy, resemble, or mirror the look and feel of our website on your website. You will not, in any way, create the impression that your website is our website. This includes framing our website on your site in any manner.
  4. Not engage in cookie stuffing and or include pop-ups, false, or misleading links on your website. You will not attempt to mask the referring URL information for a Link (i.e. the page from where the Link click is originating).
  5. Never use redirects to give the appearance that a Prospective Customer’s click on a Link came from another domain.
  6. Not promote, post or link to information about methods to manipulate or work around the requirements of a Link promotion.
  7. Display Links in their entirety as provided to you through the ShareASale Interface.
  8. Not advertise Links obtained from any means other than the ShareASale Interface, including via SmugMug’s non-referral advertising, customer e-mails, paid searches or any other campaign.
  9. Not mislead customers or give the appearance that any offer on our website requires a click from your website in order to redeem such offer. For example, if we are running a promotion on our website for free shipping on product purchases over $100, you may not suggest or imply that a Prospective Customer must click a Link from your website to receive this deal.
If you redirect any Link in a manner that hides or manipulates its source, we may immediately terminate your participation in the SmugMug Partner Program and you will not be entitled to receive a payout of your earned commissions as of the date of such termination. We will have no obligation to pay you commissions if you fail to properly implement the Links on your website.
 

Earning Commissions

You may earn commissions when Prospective Customers who follow Links from your website to our website place orders for the SmugMug Services. SmugMug reserves the right to reject orders for the SmugMug Services that do not comply with any requirements on our website, as they may be updated from time to time. The SmugMug Services ordered any by Prospective Customer will be governed by SmugMug’s terms of use. Prospective Customers who purchase the SmugMug Services via the Links are SmugMug’s customers with respect to all activities they undertake in connection with the SmugMug Services.
 
Any commissions that you are entitled to in connection with your participation in the SmugMug Partner Program will be calculated as described on the ShareASale Interface. The ShareASale Interface will also list the SmugMug Services that will result in you earning a commission when purchased by Prospective Customers and the related commission percentage applicable to such sales. Eligible SmugMug Services and their related commission percentages are subject to change at any time with or without notice to you. Therefore, you are encouraged to regularly check the ShareASale Interface for the latest commission percentages and SmugMug Services that affect your participation in the SmugMug Partner Program.
 
From time to time, SmugMug may offer you additional ways to earn commissions through your participation in the SmugMug Partner Program (e.g., via bonus incentives or similar programs), the terms and conditions of which will be made available to you via the ShareASale Interface.
 

Payment Terms & ShareASale

The calculation and payment of all commissions that you earn in connection with your participation in the SmugMug Partner Program are performed by and processed through ShareASale. Please refer to your agreement with ShareASale for all payment terms and conditions relating to the calculation and payment of your earned commissions. Commissions will be paid to you solely through ShareASale and SmugMug shall have no responsibility or obligation to pay any commissions or compensation directly to you. If you have a question or dispute regarding the calculation of your commissions, you must contact ShareASale to address any such concerns or issues. SmugMug disclaims all liability to you for miscalculations, errors or mistakes in the payment of your earned commissions by ShareASale.
 
The commissions paid by ShareASale to you are the only compensation you are owed for your participation in the SmugMug Partner Program and no other compensation of any kind is payable to you under these Terms. You are solely responsible for (a) all costs and expenses incurred by you in connection with the implementation and performance of your responsibilities and obligations under these Terms; and (b) any and all taxes, fees, duties, tariffs or charges which may be imposed on you in connection with your participation in the SmugMug Partner Program.
 

SmugMug Materials

SmugMug grants you a limited, non-exclusive, right to use (a) any marketing or advertising materials provided by SmugMug, including Links and (b) only those SmugMug trademarks or logos provided to you by SmugMug on the ShareASale Interface or otherwise (the “SmugMug Materials”), in each case solely for the limited purpose of promoting SmugMug Services to Prospective Customers in connection with your participation in the SmugMug Partner Program. You may use SmugMug Materials only as directed by SmugMug and in exactly the form provided to you by SmugMug. You must not take any action inconsistent with SmugMug’s ownership of the SmugMug Materials and any benefits accruing from use of SmugMug Materials will automatically vest in SmugMug. All right, title and interest in and to the SmugMug Materials and all goodwill associated therewith will remain and vest with SmugMug. You may not use any of the SmugMug Materials as part of the domain or sub-domain for your website (e.g., smugmug.website.com or www.smugmug-coupons.com).
 

Advertising & Publicity

You will not create, publish, distribute, or print any written material, including emails, that reference the SmugMug Partner Program or contain the SmugMug Materials without first submitting that material to us and receiving our prior written consent. If you intend to promote the SmugMug Services via email, you must comply with all rules, regulations and requirements of the CAN-SPAM Act of 2003 (Public Law No. 108-187) and CASL Act of 2010 (S.C. 2010, c. 23). All emails must be expressly sent on your behalf and must not directly or indirectly imply that the email is being sent by SmugMug.
 
If you engage in pay-per-click (“PPC”) advertising for your website, you must adhere to the following PPC guidelines:
  1. You may not bid on any SmugMug trademarks (including, but not limited to SmugMug, smugmug.com, Camera Awesome, cameraawesome.com), or any variations or misspellings thereof, for search or content-based campaigns on Google, MSN, Yahoo!, Facebook or any other search or advertising network.
  2. You may not use SmugMug trademarks in combination with any other keyword (e.g., “SmugMug Coupons”).
  3. You may not use SmugMug trademarks in your ad title, ad copy, display name or as the display URL.
  4. You may not direct link to our website from any PPC ad or use redirects that yield the same result.
  5. You may not bid in any manner appearing higher than SmugMug for any search term in position 1-5 in any auction-style PPC advertising program.
We have a strict no tolerance policy on PPC trademark bidding. If you automate your PPC campaigns, it is your responsibility to exclude our trademarks from your program. We strongly suggest that you add our trademarks as negative keywords. If we determine that you have engaged in PPC trademark bidding with any SmugMug trademarks, we may immediately terminate your participation in the SmugMug Partner Program and you will not be entitled to receive a payout of your earned commissions as of the date of such termination.
 

FTC Disclosure Requirements

You must include a disclosure statement within any websites, pages, blogs/posts, or social media posts where Links for the SmugMug Partner Program are posted in connection with an endorsement or review and where it is not clear that the Links are paid advertisements. This disclosure statement should be clear and concise and state that we are compensating you for your review or endorsement. If you received any SmugMug product or services for free in connection with your participation in the SmugMug Partner Program, you must also clearly state that you received free products and/or services from SmugMug in your disclosure. In addition:
 
  1. Disclosures must be made as close as possible to the Link and related claims.
  2. Disclosures should be placed “above the fold” of your website; scrolling should not be necessary to find the disclosure (e.g., the disclosure should be visible before the jump).
  3. Pop-up disclosures are prohibited.
For more information about FTC disclosure requirements, please review the FTC’s “Dot Com Disclosures” Guidelines at //www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf ; and the FTC’s Endorsement Guidelines at //business.ftc.gov/advertising-and-marketing/endorsements.
 

Third-Party Websites & Social Media

You are permitted to promote the SmugMug Services (including posting Links) on third party social media websites (e.g., Facebook, Twitter) and other blogs, forums and similar websites in accordance with these Terms. If you use such third party websites to promote the SmugMug Services, you must comply with such website’s own terms and conditions regarding the posting of promotional content. Further, you must comply with the following social media guidelines:
  1. You may promote the SmugMug Services by posting Links on your own social media accounts (including Facebook and Twitter). For example, you may post a Facebook status update that states: “Click here for a 25% off sale at SmugMug through Wednesday.”
  2. You may not post your Links on any public forum found on SmugMug’s own social media accounts. For example, you may not post Links as comments to posts or news feed stories found on SmugMug’s Facebook page.
  3. You may not purchase or run ads on any social media website using the Links or any other SmugMug Materials.

Operations Outside the United States

If you are located or conducting business in a country outside of the United States, you must follow all applicable the laws of that country pertaining to your participation in the SmugMug Partner Program. For instance, if you are located or conducting business in one or more of the European Union countries, you must comply with the European Union’s Privacy and Electronic Communications Directive.
 

Reversals & Chargebacks

SmugMug takes pride in its very low reversal rate for the sales of SmugMug Services to our customers. From time to time, however, your earned commissions may be adjusted or reduced due to order cancellations, duplicate tracking, returns, or disputed charges by Prospective Customers. Any such adjustment for a reversal, return, chargeback or similar event will be reflected in your SmugMug Partner Program account located in the ShareASale Interface within 34 days of the applicable sale of the SmugMug Services to a Prospective Customer. ShareASale may withhold the payment of your earned commissions during such 34 day window in its discretion.
 

Fraud & Communication Policy

If we ask you for clarification or more information regarding any Link clicks or orders for the SmugMug Services using a Link that we suspect may be in violation of these Terms, we expect you to respond to any such inquiry in a timely and honest manner.
 
We may immediately terminate your participation in the SmugMug Partner Program and you will not be entitled to receive a payout of your earned commissions as of the date of such termination if (a) you violate these Terms (or any other SmugMug policy relating to the SmugMug Partner Program); (b) we suspect your participation in the SmugMug Partner Program, or any action taken by you in connection with the SmugMug Partner Program, is fraudulent, deceptive or violates any applicable law; (c) your communications to SmugMug and ShareASale are not forthcoming, are intentionally vague or if we have reason to believe you are lying or being dishonest; (d) we attempt to contact you using information listed in your SmugMug Partner Program account on the ShareASale Interface and you are unresponsive within a reasonable period of time or your our emails to you are undeliverable; or (e) you cannot substantiate or validate the source of your traffic to our website through the Links with clear and demonstrable proof.
 
You are responsible for ensuring that your website includes appropriate policies and procedures designed to detect and prevent fraud consistent with the requirements of these Terms.
 

Terms & Termination

These Terms will be effective upon our acceptance of your SmugMug Partner Program application and will end when terminated by either you or us as described in these Terms. Either you or we may terminate these Terms for any reason, with or without cause, by giving the other party written notice. Upon termination, (a) you must immediately discontinue the use of all SmugMug Materials, including removing all SmugMug Materials from your websites and (b) you must immediately cease using the Links. The provisions of these Terms which are intended to survive by their nature will survive termination or expiration, including the sections titled “Indemnification”, “Warranty Disclaimer”, “Limitation of Liability”, “Dispute Resolution” and “Miscellaneous”.
 
Upon the termination of your participation in the SmugMug Partner Program, you will be entitled to receive your accrued but unpaid commissions (except as otherwise set forth in these Terms or in the event of a termination arising out of your breach of these Terms). You will not be entitled to any new commissions generated from Links following the termination of these Terms (including Links distributed by you prior to such termination). You are responsible for communicating to Prospective Customers that you are no longer a participant in the SmugMug Partner Program and that all distributed Links are no longer valid. No termination of these Terms will relieve either party from any liability for any breach of, or liability accruing under, these Terms prior to termination.
 

Prohibition on Participants in Select States

Due to local state tax laws, we cannot accept program participants residing in Arkansas, Colorado, Connecticut, District of Colombia, Georgia, Kansas, Maine, Mississippi, Missouri, New York, Pennsylvania, Rhode Island, Texas, Vermont, and West Virginia. If at any time following your enrollment in the SmugMug Partner Program you become a resident of any of these states your participation in the Program will automatically terminate on the date you establish residency in that State. You must promptly notify us in writing of your state of residency via the ShareASale website.
 

Your Responsibilities and Obligations

You have no authority to assume or create any obligation or warranty, express or implied, on behalf of SmugMug or to represent SmugMug in any capacity, except as expressly set forth in these Terms. You also have no authority or control over the prices or fees for the SmugMug Services. Our relationship is that of service provider and independent contractor, and nothing in these Terms will create or imply any partnership, joint venture, agency, franchise, sales representative or employment relationship.
 
You will not (a) make any false, misleading or disparaging representations or statements with regard to SmugMug or the SmugMug Services; (b) engage in any unfair or deceptive trade practice in connection with your promotion of the SmugMug Services or participation in the SmugMug Partner Program; (c) use any “spam” emails, “junk mail” or similar unwanted advertising or promotional materials in connection with the promotion of the SmugMug Services to Prospective Customers; or (d) sell Links to third parties in exchange for a fee or other compensation. You will comply with all laws, rules and regulations applicable to your participation in the SmugMug Partner Program and any policies and procedures of SmugMug made available to you (including any usage policies pertaining to the SmugMug Materials).
 

Indemnification

You will indemnify and hold SmugMug harmless from and against any liabilities, damages, costs and expenses, including without limitation attorneys’ fees and costs, incurred by SmugMug resulting from any and all third party claims, actions or proceedings arising out of, based on or related to (a) any statements, claims, representations or warranties made by you regarding the SmugMug Services that were not specifically authorized in writing by SmugMug; (b) any illegal, unfair, deceptive or unethical business practices whatsoever by you, whether with respect to your participation in the SmugMug Partner Program, use of Links or otherwise; (c) your website and any materials, content, products or services that appear on your website; (d) your violation of any term or condition of these Terms; or (e) your or your employees’ negligence or willful misconduct.
 

Disclaimer

SMUGMUG DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO YOUR PARTICIPATION IN THE SMUGMUG PARTNER PROGRAM, OUR WEBSITES, THE SMUGMUG MATERIALS AND THE SMUGMUG SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, DESIGN, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. SMUGMUG MAKES NO REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY, RELIABILITY OR SECURITY OF THE SMUGMUG SERVICES AND WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO OR ANY MODIFICATION, SUSPENSION, UNAVAILABILITY, OR DISCONTINUANCE OF THE SMUGMUG SERVICES. SMUGMUG DOES NOT WARRANT THAT THE SMUGMUG SERVICES WILL OPERATE UNINTERRUPTED OR BE ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED. SMUGMUG IS NOT RESPONSIBLE TO YOU FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS RESULTING FROM YOUR PARTICIPATION IN THE SMUGMUG PARTNER PROGRAM, OR ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THESE TERMS OR YOUR PARTICIPATION IN THE SMUGMUG PARTNER PROGRAM.
 

Limitation of Liability

SMUGMUG WILL NOT LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES, WHETHER IN AN ACTION FOR CONTRACT OR TORT OR IN CONNECTION WITH THESE TERMS AND YOUR PARTICIPATION IN THE SMUGMUG PARTNER PROGRAM, EVEN IF SMUGMUG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SMUGMUG’S CUMULATIVE LIABILITY TO YOU UNDER THESE TERMS EXCEED ONE HUNDRED U.S. DOLLARS.
 

Changes to Terms

SmugMug reserves the right to change, modify, revise or otherwise amend any provision of these Terms, and any other terms, policies or guidelines governing your participation in the SmugMug Partner Program, at any time at its sole discretion by providing notice to you that the Terms have been modified. Such notice may be provided by sending an email, or by posting a notice on our website, or by posting the revised Terms on our website (and/or the ShareASale website) and revising the date at the top or by such other form of notice as determined by SmugMug. Your continued participation on the SmugMug Partner Program following the posting of the revised Terms or other notice will constitute your acceptance of such changes or modifications. Otherwise, any changes or modifications will be effective within 30 days of the posting of the revisions on the website unless you notify SmugMug within such 30 days that you do not agree to the changes and stop participating in the SmugMug Partner Program. Therefore, you should review these Terms often and at least every 30 days to make sure that you understand the terms and conditions that will apply to your participation in the SmugMug Partner Program.
 

Dispute Resolution

These Terms and your participation in the SmugMug Partner Program is governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without regard to its conflict of law provisions.
 
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH SMUGMUG AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. IF YOU DO NOT CONSENT TO THE TERMS OF THIS SECTION, YOU ARE NOT PERMITTED TO PARTICIPATE IN THE SMUGMUG PARTNER PROGRAM.
 
You and SmugMug agree to arbitrate any dispute arising from these Terms or relating to your participation in the SmugMug Partner Program. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and SmugMug agree: (a) to notify each other of any dispute within 30 days of when it arises; (b) to attempt informal resolution prior to any demand for arbitration; (c) that any arbitration will occur in Santa Clara County, California; and (d) that arbitration will be conducted confidentially by a single arbitrator in accordance with the Rules of the American Arbitration Association (“AAA”). The AAA’s rules are available at www.adr.org. Other than class procedures and remedies described in these Terms, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Notwithstanding the foregoing, you and SmugMug are NOT required to arbitrate any dispute in which either party seeks equitable or other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. The arbitrator’s award will be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
 
YOU AND SMUGMUG AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND SMUGMUG AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
 
Unless you and SmugMug agree otherwise, in the event that a court decides that any part of this section is invalid or unenforceable, you agree that any claim or dispute that has arisen or may arise between you and SmugMug must be resolved exclusively by a state or federal court located in Santa Clara County, California. The remainder of the Terms will continue to apply. You and SmugMug agree to submit to the personal jurisdiction of the courts located within Santa Clara County, California for the purpose of litigating all such claims or disputes.
 

SmugMug Proprietary Rights & Feedback

Other than the limited licenses expressly set forth in these Terms, SmugMug reserves all right, title and interest (including all intellectual property and proprietary rights) in and to the SmugMug Materials, SmugMug Services and any other intellectual property and technology that we provide or use in connection with the SmugMug Partner Program or on our websites. We welcome feedback from our users regarding ideas and suggestions for improvements to the SmugMug Partner Program and SmugMug Services. SmugMug will be entitled to use any such feedback without restriction, even if you designate such feedback as confidential. You hereby grant SmugMug a royalty-free, sublicensable, transferable, perpetual, irrevocable license in and to any feedback to use in any matter related to the operation of our business.
 

Miscellaneous

You may not assign or transfer these Terms to another person or entity without prior written consent of SmugMug. Any assignment in violation of the foregoing will be null and void. SmugMug may assign these Terms in its discretion. These Terms will be binding on any permitted successors or assignees. The remedies provided in these Terms will be cumulative, and the assertion by either party of any right or remedy will not preclude the assertion by such party of any other rights or the seeking of any other remedies. The invalidity or unenforceability of any provision of these Terms will in no manner affect the validity or enforceability of any other provision hereof. These Terms represent the entire agreement between you and SmugMug and supersedes any prior or contemporaneous understandings or agreements with respect to the subject matter hereof. The failure of either party to enforce any of the provisions of these Terms or the waiver thereof in any instance will not be construed as a general waiver or relinquishment on its part of any other provision, but the same will nevertheless be and remain in full force and effect.

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