This document is published in English, the binding version of the agreement.
Last updated: October 31, 2016
Welcome to Phocus! These Terms of Service (the “Terms”) and our Privacy Policy govern your access to and use of the Phocus services and the Phocus website, including any browser extensions, mobile applications and other downloadable apps we provide (collectively, “Phocus”), so please read them carefully.
By using Phocus, you are agreeing to these Terms. If you do not agree to these Terms, do not use Phocus. If you are using Phocus on behalf of an organization such as your employer, you are agreeing to these Terms on behalf of that organization, and represent and warrant that you have the authority to agree to these terms on the organization's behalf. In that case, “you” and “your” will refer to that organization.
We may periodically revise the Terms. If a revision is material, as determined solely by us, we will notify you, for example via email. The current version of our Terms will always be posted on our Terms page, so please check back regularly. By continuing to use Phocus after revisions become effective, you are agreeing to the revised Terms. If you do not agree to the revised Terms, please stop using Phocus.
Your Phocus Account
To use Phocus, you'll need to create an account. Personal information you provide, such as your name, email address and other information, will be used to create your Phocus account.
Your are responsible for safeguarding your Phocus login credentials. You are responsible for activity on your account, whether or not you authorized that activity. You should immediately notify us of any unauthorized use of your account.
Your Content
When using Phocus Services, you will have unrestricted license to use images generated during a photoshoot that you have requested and paid for (“Client Images”). You may also provide us with text, images, file attachments, and other information (“your content”). You retain full ownership of your content - what belongs to you stays yours.
You can remove your content by deleting it. However, in certain instances, some of your content may not be completely removed (when your data is shared with someone else, for example). We are not responsible or liable for the removal or deletion of any of your content, or the failure to remove or delete such content.
You are solely responsible for your content and indicate that you own or have the necessary rights to all of your content, and that use of your content does not infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Your Use of Phocus
Phocus, LLC and its licensors and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. You may only use Phocus as permitted by law, including all applicable federal, state, local or international law or regulation. You may not, for example:
- Use any engine, software, tool, agent, device, mechanism or the like to access, search, or download intellectual property from Phocus, or use Phocus in any way other than through our publicly supported interfaces;
- Access, tamper with, or use non-public areas of Phocus, Phocus’s computer systems, or the technical delivery systems of Phocus’s providers;
- Probe, scan, or test the vulnerability of any Phocus system or network or breach any security or authentication measures;
- Decipher, decompile, disassemble or reverse engineer any of the software used to provide Phocus;
- Plant malware or use Phocus to distribute malware;
- Violate the privacy of others;
- Violate any applicable law or regulation;
- Impersonate or misrepresent your affiliation with any person or entity; or Post or transmit anything that is fraudulent or misleading;
- Send unsolicited communications, promotions, advertisements or spam or otherwise infringe on others' rights;
- Interfere with the access of any user, host or network, including introducing any virus, overloading, flooding, spamming, or mail-bombing Phocus, or introducing any other material or content which is malicious or technologically harmful;
- Attack Phocus via a denial-of- service attack or a distributed denial-of- service attack; o Otherwise attempt to interfere with the proper working of Phocus;
- Attempt any of the above, or encourage or enable any other individual to do any of the above.
We have the right to, though we are not obligated to, monitor access to and use of Phocus and your content, and to review or edit any of the intellectual property of Phocus users to ensure compliance with these Terms, applicable laws or other legal requirements. Should we consider any of your content objectionable or in violation of these Terms, we reserve the right to remove or disable access to any of your content, at our sole discretion, at any time, with or without notice. We have the right to investigate violations of these Terms and may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Copyright Infringement
We respect the intellectual property rights of others, and expect you to do the same.
It is our policy to terminate the Phocus account of anyone who repeatedly infringes the copyright or intellectual property rights of others. In accordance with the Digital Millennium Copyright Act of 1998, Phocus will respond expeditiously to claims of copyright infringement committed using Phocus as reported to our Designated Copyright Agent.
If you believe that any materials you or others access via the Services infringe your copyright or other intellectual property rights (e.g., trademark infringement or right of publicity), please contact our Copyright Agent at the address below and provide the following information:
- Your full legal name and electronic or physical signature
- A description of the copyrighted work or other interest that you believe has been infringed;
- Enough information to properly identify and locate that content (including, at a minimum, the relevant URL)
- Contact information, including your address, telephone number, and email address
- The following statements in the body of notice: “I hereby state that I have not authorized the challenged use, and I have a good-faith belief that the challenged use is not authorized by law.”
- “I hereby state under penalty of perjury that all of the information in the notification is accurate and that I am the owner of the IP, or authorized to act on behalf of the owner of the IP.”
Upon receipt of notice as described above, we will seek to confirm the existence of the IP on Phocus and take whatever action, in its sole discretion, it deems appropriate.
Our designated Copyright Agent for notices of copyright infringement and counter-notices is:
Phocus, LLC. ATTN: Copyright Agent hello@phocus.io
Termination
We may terminate or modify your access to and use of Phocus, at our sole discretion, at any time and without notice to you, for example, if you are not complying with these Terms, or if you use Phocus in any way that would cause us legal liability or disrupt others’ use of Phocus.
Likewise, you may cancel your account at any time, although we will be sorry to see you go.
If we suspend or terminate your use of Phocus, we will try to let you know in advance and help you retrieve data, though there may be cases (for example, flagrantly violating these Terms) where we may suspend immediately.
Warranty Disclaimers
PHOCUS IS PROVIDED “AS IS,” AT YOUR OWN RISK, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. WE ALSO DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Phocus, LLC. will have no responsibility for any harm to your computer system, loss or corruption of data, or other harm that results from your access to or use of Phocus. Some states do not allow the types of disclaimers in this paragraph, so they may not apply to you.
Indemnity
You will hold harmless and indemnify Phocus, LLC. and its affiliates, officers, directors, employees, contractors, agents, licensors, and suppliers from and against any claim, suit or action arising from or related to the use of Phocus or violation of these Terms, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL PHOCUS, LLC., ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS: (A) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, PROFIT, DATA, GOOD WILL, SERVICE INTERRUPTIONS, COMPUTER DAMAGE OR SYSTEM FAILURE), REGARDLESS OF LEGAL THEORY, WHETHER OR NOT PHOCUS, LLC. HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; (B) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO PHOCUS MORE THAN THE GREATER OF $20 OR THE AMOUNTS PAID BY YOU TO PHOCUS, LLC. FOR THE PAST THREE MONTHS OF THE SERVICES IN QUESTION. Some states do not allow the types of limitations in this paragraph. If you are in one of these jurisdictions, these limitations may not apply to you.
General Terms
These Terms and any action related thereto will be governed by the laws of the State of Minnesota without regard to its conflict of laws provisions. All claims arising out of or relating to these terms or the services or software must be litigated exclusively in the state and federal courts located in Hennepin County in Minnesota and each of the parties hereto waives any objection to jurisdiction and venue in such courts. These Terms constitute the entire and exclusive agreement between you and Phocus, LLC., and supersede and replace any other agreements, terms and conditions . These Terms create no third party beneficiary rights. Phocus, LLC.’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable, the remaining provisions of the Agreement will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights in these Terms without our written consent, and any such attempt will be null and have no effect. Phocus, LLC. may freely assign or transfer these terms without restriction. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Contact Information
If you have any questions about these Terms, please contact us at: hello@phocus.io