CEIVA Terms and Conditions / Member Agreement

CEIVA LOGIC, Inc.

("Provider") provides the CEIVA Digital Photo Frame™ product and on-line photographic repository services to users who have agreed to the terms and conditions stated below.

This Online Access Agreement ("Agreement") is a legal agreement between you and Provider. It states the terms and conditions under which you may use the CEIVA Digital Photo Frame Product ("Product") with PicturePlan® Photo Delivery Service ("Membership"), access Provider's system and use the online services that Provider makes available through that system ("Service") and use the software necessary to connect to the Service ("Software"). "PicturePlan® Membership", "Membership" and "Service" may at times be used interchangeably in this document.

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. BY COMPLETING THE REGISTRATION PROCESS AND USING THE SOFTWARE AND SERVICE, YOU AGREE TO BE LEGALLY BOUND AND TO ABIDE BY THIS AGREEMENT AS IF YOU HAD SIGNED IT. IF YOU DO NOT WISH TO BE BOUND, DO NOT PURCHASE THE CEIVA PRODUCT; OR IF YOU RECEIVED ONE AS A GIFT, FOLLOW THE RETURN POLICY AND RETURN IT IN THE ORIGINAL PACKAGING AND GIFT RECEIPT WITHIN 60 DAYS OF THE PURCHASE/DELIVERY DATE FOR A FULL REFUND (LESS SHIPPING AND HANDLING).

ACCESS AND LICENSE

ACCESS

Provider hereby grants you access to its system and the right to use the Service and Product, subject to the terms of this Agreement.

LICENSE

Provider hereby grants you a non-exclusive, personal, nontransferable license to install and use any Software provided, in executable form only, solely for the purpose of accessing Provider's system and using the Service. If required, you may install and use the Software on any compatible computer under your control and copy the Software for back-up or archival purposes provided that all such copies contain the copyright notice and other proprietary markings found on the original copy of the Software. You may not (1) modify or otherwise create derivative works, (2) translate, reverse engineer or reverse compile, or disassemble the Software, or (3) sell, rent, sublicense, assign, distribute, or otherwise transfer the Software or this license. This Agreement applies with equal force if the Software is provided for you and installed by Provider on your system.

PERMITTED USERS

You may permit other members of your organization or household to access the Service provided that each such person abides by the terms and conditions of this Agreement. By permitting others to use your account, you assume all risk and liabilities resulting from their use. If you authorize a minor to use your account, you are fully responsible for the online conduct of the minor, for controlling the minor's access to and use of the Service, and for the consequences of any misuse. It is your responsibility to safeguard any personal identification number and password required to access the system. Your right to authorize others to use your account is not assignable or transferable.

PRODUCT TAMPERING

You may not translate, reverse engineer or reverse compile or disassemble any software, firmware or part of the Product to modify its operation in a manner that is unauthorized by Provider. You should refer to your Product manual for appropriate operating procedures of the Product.

CHANGES

The Service, Provider's system, and this Agreement may change from time to time. Provider reserves the right, at Provider's sole discretion and without prior notice or liability, to discontinue or alter the Service or any feature of the Service, including without limitation: (a) restricting the time of availability, (b) restricting the availability and/or scope of the Service for certain types of computers and operating systems, (c) restricting the procedures for or amount of access or use permitted, (d) restricting or terminating any user's right to access and use the Service, and (e) changing system hardware and software. Any change is effective immediately upon a posting on the Service or your receipt of notice via electronic mail or conventional mail. By continuing to use the Service, you accept any such changes. If any such changes are not acceptable to you, you may terminate this Agreement at any time as described in the Termination section.

PicturePlan® MEMBERSHIP and SERVICE

You agree to supply Provider with accurate and complete information as specified on the online registration form and to inform Provider promptly of any change in such information.

You are responsible for all use of your account. You must promptly inform Provider of the loss, theft, or unauthorized disclosure or use of your personal identification number or password. Until you notify Provider of such a breach of security, you remain liable for any unauthorized use of the Service through your account.

The Service and Software may only be used for lawful purposes and consistent with the rights of other users and third parties. Without limiting the foregoing, the Service and Software shall not be used in a manner that would violate any law or infringe any copyright, trademark, trade secret, right of publicity, right of privacy, or any other right of any third party, or for the purpose of posting, transmitting, or storing any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, or racially, ethnically, or otherwise objectionable material of any kind.

Provider reserves the right to refuse to provide access to the Service to anyone.

PicturePlan® Membership Fees and Service Commitment You agree to pay your PicturePlan® Membership fee in advance. Your PicturePlan® Membership fee will cover the Provider service received via the Product authorized by the Provider. You must pay in U.S. dollars, by credit card. The PicturePlan® Membership fee is due in full at the beginning of each PicturePlan® Membership period, and will renew automatically on the eve of the expiration period, unless auto-renew is not selected. Your registration and agreement to these Terms and Conditions is your authorization for Provider to apply recurring charges to the valid credit card you provide at registration. Such recurring charges will continue until you or Provider cancels your PicturePlan® Membership. PicturePlan® Membership service prices subject to change without notice.

Bundled PicturePlan® Memberships

For products sold with bundled PicturePlan® Memberships, the PicturePlan® Membership begins to run at the time of purchase.

Multiple Frames If you add additional Products to your account, you must purchase a separate PicturePlan® Membership for each one. Such additional PicturePlan® Memberships may be eligible for reduced rates, which may be offered by Provider from time to time.

Transferring PicturePlan® Membership Service Time Each Product requires its own PicturePlan® Membership to the Provider Network. The service time will accompany the Product in the case of a transfer of ownership of the Product; however, the PicturePlan® Membership cannot be transferred from one Provider Product to another Provider Product. PicturePlan® Membership cannot be transferred to a product manufactured by a different entity. The PicturePlan® Membership time will remain in effect when the Product is repaired by the manufacturer or an authorized representative of the manufacturer. The PicturePlan® Membership will remain in effect when it is transferred to a replacement Product when that replacement is the repair option selected by the manufacturer or its authorized representative.

Taxes You will pay all taxes or other government fees and charges, if any, which are assessed, based on your products ordered, and your use of the Services and the billing address you provide to Provider.

If Your Payment Isn't Honored If any bank or other financial institution refuses to honor any payments of yours, we may deactivate your PicturePlan® Membership.

Change of Address or Credit or Charge Card Information You must notify us immediately of any change in your name, mailing address, residence address, e-mail address, telephone number or credit or charge card information by updating the information in your online account.

Telephone Access and Possible Charges The Provider service is accessed through a standard telephone line and is available as a local call in most areas. In some areas, local and long distance toll charges may apply. Determination of which calls are local is based on standard residential service for your area and should only be used as a general guide. Please contact your phone company to confirm the telephone numbers you have selected to reach the CEIVA Network™ will not result as a toll charge. The Provider service may also be available through the Internet with a broadband connection with an options CEIVA Wireless™ or CEIVA Broadband™ adapter. However, the Provider does not make any assurances about the availability or functionality of the Provider service over a broadband connection. Firewall protection is strongly advised for any broadband Internet connections to protect your Provider unit from viruses and other harmful things. You are responsible for any telephone or broadband service charges incurred as a result of using or accessing the Provider service and acknowledge and agree that you shall be solely responsible for all disputes with any telephone company or Internet service provider related to the same.

Online Service Interruptions Online Service access may be limited or unavailable based on unavailability or difficulties with the Internet generally or your web browser, computer, home wiring, Internet service provider or other things beyond our control. We do not guarantee continuous, uninterrupted or secure access to the Online Service and operation of the Online Service may be interfered with by numerous factors outside of our control.

CANCELLATIONS

Annual PicturePlan® Membership Plans

PicturePlan® Membership prices are subject to change without notice. For bundled subscriptions, or subscriptions included as part of a Program, there is no cost for cancellation of membership during the first twelve months and there are no refunds. For paid subscriptions, cancellation within 30 days from the date of the CEIVA Digital Photo Frame's registration or renewal results in $10 cancellation fee and full PicturePlan® Membership refund; OTHER THAN THE 30 CANCELLATION PERIOD, MEMBERSHIP CANCELLATION PRIOR TO THE END OF THE SERVICE TERM DOES NOT RESULT IN A REFUND.

Monthly PicturePlan® Memberships

PicturePlan® Membership prices subject to change without notice. (1) Monthly PicturePlan® Memberships require a minimum of three months of service time (2) after the initial 3 months; a cancellation that is not more than 4 days past the monthly billing date (including holidays and weekends) will receive a refund of the last monthly charge. (3) Cancellation after 4 days past the most recent monthly billing date (including holidays and weekends) will result in no PicturePlan® Membership service refund and the monthly plan will remain active until next billing date.

Units sold bundled with PicturePlan® Membership

If you purchase a product bundled with PicturePlan® Membership, you are receiving PicturePlan® at a discounted rate. We do not offer partial PicturePlan® Membership returns for service time used on bundled products.

Units with 3-Months of PicturePlan® Membership Included: If you purchased a Product with three months of PicturePlan® included, at the time of registration you will be given the opportunity to purchase additional time on your PicturePlan® Membership. If you select to add additional time to your PicturePlan® Membership, you will be charged immediately but you may cancel your additional time for a full refund any time prior to the expiration of your initial 3-month period. After the initial 3-month period, your PicturePlan® Membership will be subject to the same monthly and yearly cancellation policies noted above.

Units with 1 or 2 Year PicturePlan® Membership Service Agreement:
If you purchased a Product with a 1-Year or 2-Year PicturePlan® Service Agreement, registration is required. At registration, you must select a monthly, yearly or multi-year PicturePlan® Membership to activate your CEIVA frame. If the monthly PicturePlan® is chosen, the member’s credit card will initially be charged for three months, after which the automatic monthly renewal will take effect. The monthly PicturePlan® Membership may be canceled at any time after the service agreement has been met without any penalty. If a yearly or multi-year PicturePlan® is chosen, your credit card will be charged based on the then current rate. No PicturePlan® Membership cancellation will be offered prior to the completion of the service agreement, after which time, you are subject to the same cancellation policy as stated above. If you fail to meet the service agreement requirements the CEIVA frame and memory card reader will be deactivated and/or CEIVA may institute collection proceedings for the unpaid term of your commitment. You hereby agree to pay for all collection fees and costs.

WARRANTY

NO WARRANTY FOR SERVICE OR SOFTWARE FOR ON-LINE ACCESS; LIMITATION OF LIABILITY

THE SERVICE IS PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. PROVIDER DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO ANY INFORMATION, SOFTWARE, PRODUCT, OR SERVICE FURNISHED BY IT UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM LIABILITY OF PROVIDER TO ANY USER FOR ANY LOSS, CLAIM, DAMAGE, OR LIABILITY OF ANY KIND, INCLUDING DUE TO PROVIDER'S NEGLIGENCE, SHALL BE LIMITED TO THE AMOUNT PAID BY USER TO PROVIDER DURING THE SIX-MONTH PERIOD PRECEDING THE CLAIM. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

THE PRODUCT HAS A LIMITED WARRANTY. Click here to view the Limited Warranty .

In addition to the LIMITED WARRANTY, all active PicturePlan® Members are covered by for the PicturePlan® Lifetime Warranty. Click Here for PicturePlan® Lifetime Warranty Details .

INDEMNIFICATION

You agree to indemnify and hold Provider, its officers, directors, employees, and agents harmless from and against any claims and expenses (including reasonable attorney's fees) arising out of or related to any violation of this Agreement or use of your account.

PRIVACY; NO EDITORIAL CONTROL

Electronic mail and other transmissions passing through the Service or over the Internet and through Provider's system are not secure, and Provider cannot guarantee the security or privacy of any of your information or communications. Provider will not intentionally monitor or disclose any private electronic communications, except to the extent necessary to identify or resolve system problems or as otherwise permitted or required by law. Provider does, however, reserve the right to monitor transmissions, other than private electronic communications, as necessary to provide the Service and otherwise to protect the rights and property of Provider. Notwithstanding the foregoing, Provider does not have the practical ability to restrict conduct, communication, or content that might violate this Agreement before transmission on the Service, nor can Provider assume any liability for any action or inaction with respect to such conduct, communication, or content.

PROPRIETARY RIGHTS

SOFTWARE

The Software and any accompanying documentation and written materials are the sole and exclusive property of Provider or its licensor and are protected by copyright and trade secret law and international treaties.

CONTENT

You acknowledge that the Service contains communications information, software, photos, video, graphics, sound, music, and/or other material ("Content") that are protected by copyright, trademark, trade secret, and other intellectual property laws and that the rights in such Content are valid and protected in all forms, media, and technologies that now exist or that may be developed in the future. You may not modify, publish, distribute, transmit, transfer, sell, create derivative works from, or in any way exploit any of the Content that you obtain from the Service, in whole or in part. Except as permitted by the fair use provision of U.S. copyright law, you may not upload, post, reproduce, or distribute any Content protected by copyright or other proprietary rights without the permission of the copyright owner.

THIRD PARTY CONTENT AND SERVICES

(i) You may only upload or otherwise distribute via the Service Content that is not subject to any copyright or other proprietary rights protection or for which you have the owner's express authorization for such online distribution. The unauthorized uploading or distribution of copyrighted or other proprietary Content constitutes a breach of this Agreement and could subject you to criminal prosecution, personal liability for any damages arising from any infringement, and termination of this Agreement. By uploading Content to the Service in any area that is generally accessible to other users, you automatically grant (or warrant that the owner of the Content has expressly granted) to Provider the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, distribute, and transmit the Content, in whole or in part, worldwide and/or to incorporate it in other works in any form, media, or technology, now known or that may be developed in the future, for the full term of any copyright, including renewals thereof, that may exist in such Content. You also grant (or warrant that the owner of the Content grants) to other users the right and license to access, view, store, or reproduce the Content for that user's personal use. Subject to the foregoing, the owner of the Content uploaded or distributed on the Service retains all rights that may exist in such Content.

(ii) Provider is a distributor and not a publisher of Content supplied by third parties and users. Because communication of Content over the Service occurs in real time, and because of the volume of Content, Provider cannot, and does not intend to, screen, police, edit, or monitor communications and Content. If Provider is notified of any Content that allegedly violates the system rules, or is otherwise unlawful, Provider may investigate and remove or request the removal of such Content as it deems appropriate in good faith and in its sole discretion. Any opinions, advice, statements, services, offers, or other Content expressed or made available by third parties are those of the respective authors, owners, or distributors, and not of Provider. In no event will Provider be liable for any loss or damage caused by a user's reliance on Content obtained through the Service or in respect of any investigation and/or removal or request for removal of any Content. It is your responsibility to evaluate the accuracy, completeness, or usefulness of any information, advice, opinion, or any other Content available through the Service.

(iii) The Service may permit you to receive information and order and receive merchandise and services directly from businesses that are not owned or operated by Provider. The purchase, payment, warranty, delivery, and any other terms concerning such information, merchandise, and services are solely between you and such businesses.

(iv) You shall not post or transmit through the Service any material which, without the Provider's prior approval, contains any advertising or any solicitation with respect to Products or Services.

(v) Various companies provide a variety of information and data that is displayed on the CEIVA web site and frame for the use and convenience of our customers. CEIVA Logic, Inc. does not create, audit or in any way preview that information or data and shall in no way be responsible or liable for its accuracy or content.

EXPORT

The U.S. export control laws regulate the export and re-export of technology originating in the United States, including the electronic transmission of information and software to foreign countries and foreign nationals. You agree to comply with these laws and not to transfer by electronic transmission or otherwise any Content derived from the Service without obtaining any required government authorization. You further agree not to upload to the Service any data or software that cannot be exported without prior written government authorization, including without limitation certain types of encryption software.

TRADEMARKS

CEIVA® and the CEIVA® logo as well as CEIVA Digital Photo Receiver™, CEIVA Digital Photo Frame™, CEIVA 7-inch Digital Photo Frame™, CEIVA 8-inch Digital Photo Frame™, CEIVAlife™, CEIVAlife Digital Photo Frame™, CEIVAshare™, CEIVAshare Digital Photo Frame™, CEIVA True-to-Photo™, True-to-Photo™, CEIVA Network™, CEIVA Galleries™, CEIVA Channels™, CEIVASender™, CEIVAMobile™, CEIVA Broadband™ adapter, CEIVA Wireless™ adapter, CEIVA PicturePlan® and CEIVA® Prints, are the service marks of Provider. The right to access and use the Service and Software do not include any right to use the service marks of Provider.

TERMINATION
FOR ANY REASON

Either you or Provider may terminate this Agreement for any reason at any time by giving the other party notice of termination. Such termination shall be effective upon receipt of notice.

FOR CAUSE

Provider may terminate this Agreement without notice for any conduct that Provider believes in its sole discretion violates this Agreement, interferes with other users’ use of the Service, or is otherwise inappropriate.

NON-PARTICIPATION

A condition of your CEIVA Member and CEIVA Guest accounts is your Active Participation in the Service. Active Participation is defined as signing on to ceiva.com and sending at least one picture to an album or CEIVA Photo Digital Frame™ at least once every 180 days. If your Member or Guest account is inactive for a period of over 180 days, CEIVA may terminate your account or use of the Service, and remove and discard any content, including but not limited to any and all information, albums, image files or any other content within the Service.

EFFECT OF TERMINATION

Upon termination, your license to use the Software and the Service automatically terminates, and Provider will delete all data, files, or other information stored in your account. (In the event of termination, monthly service fees and any prepaid charges may not be refunded or prorated. Please see the appropriate section above for details.)

LEGAL NOTICES TO CALIFORNIA USERS

California users are entitled to the following consumer rights information under California Civil Code Section 1789.3:

PRICING INFORMATION

Current PicturePlan® Membership fees may be obtained by visiting http://www.ceiva.com/lmore/pp/pictureplan.jsp . Provider reserves the right to add, delete, or change fees or charges at any time upon notice as provided in this Agreement.

COMPLAINTS

The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814 or by telephone at 1-916-445-1254.

GENERAL
CHOICE OF LAW

This Agreement and its validity, construction, and performance shall be governed in all respects by the laws of the State of California, without regard to its choice of law rules.

VENUE OF LEGAL ACTION

Any litigation pertaining to this agreement shall be held in a court of competent jurisdiction in the County of Los Angeles, State of California.

ATTORNEY’S FEES & COSTS

The prevailing party as determined by the court in any litigation pertaining to this agreement shall be entitled to receive reasonable attorney’s fees and costs.

NO WAIVER

Provider's failure to insist upon strict performance of any of the provisions of this Agreement shall in no way constitute a waiver of future violations of the same or any other provision.

SEVERABILITY

If any provision or portion of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remainder of this Agreement shall not in any way be affected or impaired thereby.

SURVIVAL

The provisions of this Agreement relating to confidentiality, warranties, and indemnification shall survive any termination or expiration of this Agreement.

ENTIRE AGREEMENT

This Agreement constitutes the entire agreement of the parties with respect to its subject matter and supersedes all existing agreements and all oral, written, or other communications between them concerning its subject matter.

FORCE MAJEURE

Neither party shall be responsible for delays of performance resulting from acts beyond the reasonable control of such party. Such acts shall include, but not be limited to, acts of God, strikes, walkouts, riots, acts of war, epidemics, failure of supplier to perform, governmental regulations, power failures, earthquakes, or other disasters.

NOTICES

All notices and demands of any kind or nature that either party to this Agreement may be required or may desire to serve upon the other in connection with this Agreement shall be in writing and may be served personally or by prepaid registered or certified United States mail or by nationally recognized express courier, in either case to the addresses and persons set forth at the beginning of this Agreement. Either party may from time to time, by notice in writing served upon the other party as aforesaid, designate a different mailing address or a different person to which following such service all further notices or demands are thereafter to be addressed.