Last Revision: Dec 10, 2020
Notice of Arbitration Agreement: These Terms of Service contain an Arbitration Agreement that may impact your rights to use the courts to resolve disputes. Please carefully review the terms of the Arbitration Agreement below. If you do not wish to be bound by the Arbitration Agreement, do not use the Service as defined herein.
Notice of Class Action/Class Arbitration Waiver: These Terms of Service include a waiver of your right to proceed with class actions or class arbitrations. Please carefully review Section XV(g) for details. If you do not wish to waive rights to class-based relief, do not use the Service.
This imghi Terms of Service Agreement ("Terms") applies to (1) your use of imghi' services, software, and websites, including the websites located at imghi.com and screenshots.com, the PhishEye and Iris suite of software tools, and any other website owned or controlled by imghi (collectively, the "Service"); and (2) all material and data that you download, receive, or otherwise obtain through the use of the Service ("imghi Data"), including data provided to imghi by third parties ("Partner Data").
By accessing or using the Service you agree to these Terms and any other referenced terms, conditions, and policies. You further acknowledge that by using the Service, you necessarily access computers, servers, networks, and other hardware owned and operated by imghi to provide the Service (collectively, the "System"). If you are accessing or using the Service on behalf of a business, corporation, partnership, non-profit, or other organization (an "Enterprise Customer") then you are agreeing to these Terms on behalf of the Enterprise Customer. If you are not authorized to bind the Enterprise Customer to these Terms, then do not access or use the Service on its behalf.
Your authorization to access the System and use the Service is conditioned on your acceptance of and compliance with these Terms. If you cannot or do not accept these Terms, you are not authorized to access the System or use the Service and any access of the System or use of the Service by You is unauthorized.
imghi reserves the right to change, modify, add, or remove portions of these Terms at any time. imghi will alert you of any changes by indicating at the top of these Terms the date they were last revised. It is your responsibility to check these Terms periodically for changes. Your use of the Service following the posting of revised Terms means you accept and agree to the changes.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SERVICE.
I. The Service
(a) Requirements for Use of the Service. In order to use the Service, you must be at least 18 years old and have legal capacity to enter binding contracts. Additionally, you must not be barred from accessing or using the Service under United States law or the laws applicable where you reside or from where you access or use the Service.
(b) imghi Limited License to You. Subject to these Terms, imghi grants you a limited, revocable, non-assignable, non-transferable, non-sublicensable, and non-exclusive right and license to access and use the Service; provided that you do not (and do not allow any third party to) sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Service or imghi Data or attempt to do so.
(c) Membership Account Registration. Certain features or services offered on or through the Service may require you to open a membership account. In order to open an account, you must provide imghi with certain information ("Registration Data") requested on the registration form; inquiries marked "required" must be answered, and any other request for information may be left blank. You agree that the Registration Data you provide: (1) is true, accurate, current, and complete, and (2) will be maintained and updated by you to keep it true, accurate, current and complete. imghi reserves the right to suspend or terminate your use of the Service and refuse to provide you with any and all current or future use of the Service if imghi, in its sole discretion, determines that any of your Registration Data is untrue, inaccurate, not current, or incomplete.
(d) Account Security. During the registration process you will provide an email address, which will function as your user name, and select a password, both of which you may be able to modify later subject to certain system and technical restrictions ("Account Credentials"). You are responsible for maintaining the confidentiality of your Account Credentials and are fully responsible for all activity that occurs under your Account Credentials or that uses your account whether or not authorized by you. Your account will be charged for all activity authenticated with your Account Credentials even if you later determine the use was fraudulent or unauthorized by you. You will immediately notify imghi of any unauthorized use of your Account Credentials or any other breach of security. imghi cannot, and will not, be liable for any loss or damage arising from your failure to comply with this requirement.
(e) Single User Accounts. With the exception of certain paid membership types, imghi accounts may only be accessed and used by the registered user. Sharing, selling, or transferring your Account Credentials with another user is prohibited and a basis for immediate account termination or suspension.
(f) Paid Memberships. Certain features or services offered on or through the Service may require a paid membership. Available membership types and associated fees, terms, and conditions will be posted on a website associated with the Service. The term of a paid membership starts when you submit the registration form and continues for the duration you selected during account registration (a "Membership Term")—e.g. one month or one year. You agree that you will pay for the membership and any additional services or products you purchase through the Service, and that imghi may charge your credit card or payment account for any membership upgrades purchased and for any additional amounts (including any taxes, as applicable) that may be accrued by or in connection with your account.
(g) Automatic Renewal; Subsequent Terms. The Membership Term will automatically renew, unless terminated by you prior to the end of the Membership Term, for an additional period of the same duration, or at your election, another period then offered by imghi (an "Additional Term"). Similarly, any Additional Term will automatically renew unless terminated by you prior to the end of an Additional Term for another Additional Term, or at your election, another period then offered by imghi. If you do not elect an Additional Term of a different period than your current term, then you agree to pay for an Additional Term of the same duration as your current term based on the pricing in effect at the time of renewal. If you elect an Additional Term for a different period, you agree to pay the fees disclosed by imghi in connection with that different period. You authorize imghi to charge the credit card or PayPal account on file for an amount equal to the fees for the Additional Term unless you have cancelled prior to the end of the current term.
(h) Membership Changes. You may change your membership level by upgrading from one membership type to another. For example, you may upgrade from one type of paid membership to another type of paid membership. An upgrade will take effect immediately, and you will be charged a prorated fee based on the remaining length of the current Membership Term, if applicable. You may downgrade your membership level by renewing at a different membership type or electing to not renew prior to the end of your current Membership Term. A downgrade will take effect at the end of the current Membership Term.
(i) Fees. All fees and charges paid by you in relation to the Service are nonrefundable, except as required by law or as otherwise stated herein. imghi accepts American Express, Visa, MasterCard and PayPal and requires, for some membership types, that You have one such payment method on file with imghi before you may use the Service. All fees will be billed to the credit card or payment account you designate during the registration process. If imghi is unable to successfully charge your credit card or payment account for fees due or you are otherwise in breach or default under these Terms, imghi reserves the right to immediately terminate or suspend your access to the Service, including your access to any reports or information available through your account. In the event you change your credit card or payment information or cancel the credit card or payment account on file with imghi, you will (1) promptly advise imghi of the change or cancellation and provide updated credit card or payment account information that can be charged by imghi, and (2) pay any amount due to imghi for the Service.
(j) Account Disputes and Unacceptability of Chargebacks. If you have a question about charges made to your account, please contact imghi immediately. You may request that imghi refund charges to your charge, credit or debit cards. imghi will review such request and respond within 5 business days. However, you acknowledge and agree that chargebacks requested through your issuing bank are an unacceptable charge dispute resolution method. If you dispute the credit card charge that imghi charges for its services, imghi reserves the right to suspend your account as soon as imghi is informed of your chargeback request. You agree to immediately pay to imghi any chargebacks of amounts originally charged to your charge, credit or debit cards, as well as for fees incurred by imghi for such chargebacks. Your responsibility for chargebacks and related fees will continue even if you have received the funds, and/or closed your account. Any chargeback fees, past due fees, and costs will be sent to collections. If imghi' collection efforts fail, unpaid debts may be reported to the State of Washington, all available credit reporting agencies and Internet fraud databases.
(k) Termination or Modification of Service. imghi reserves the right, without liability to you or any other third party, to modify or discontinue, temporarily or permanently, in whole or in part, the Service without notice. For example, imghi may change at any time the types of memberships available and the specific terms applicable to each membership. If your existing membership type is no longer available at the end of your current term and you have not cancelled your membership, imghi may, in its reasonable discretion, cause a Subsequent Term to proceed under the terms of your current membership type or under the terms of another available membership type that is reasonably comparable to your current membership. You agree that imghi shall not be liable to you or any third party for any modification or termination of the Service.
(l) Access to the Service. imghi reserves the right to change the requirements for accessing the Service or System at any time and for any reason in its sole discretion, including changes to membership fees or other fees. imghi reserves the right to alter, suspend, or discontinue the Service, or any portion thereof, at any time and for any reason, without prior notice to you. The Service may also become unavailable due to maintenance or malfunction of computer equipment or other reasons. imghi may at any time terminate your membership or block your access to the Service if: (1) You have breached any provision of these Terms (or have acted in a manner that indicates you do not intend to, or are unable to, comply with these Terms); (2) imghi is required to do so by applicable law; (3) the provision of the Service to you by imghi is, in imghi' discretion, no longer commercially viable; or (4) imghi has elected to discontinue the Service, or any portion thereof, for any reason. imghi shall not be liable to you or any third party for any termination or cancellation of your access to, or use of, the Service.
(m) Guest Access. imghi permits You to access the Service without a Membership Account for limited purposes. You agree that imghi may change the limitations on Guest Access at any time for any reason, including eliminating Guess Access entirely. You further agree that imghi may require you to complete a user verification form (e.g. a Captcha) to prevent abuse of the Service.
II. Enterprise and Group Memberships
(a) Multiple User Accounts. imghi' Enterprise Membership and Group Membership accounts permit an Enterprise Customer to provide access to the Service to multiple individual users who are Enterprise Customer's employees, agents, or contractors ("Enterprise Users") and may offer other additional benefits and features which imghi reserves the right to modify or terminate at any time without notice. If you are interested in an Enterprise Membership or Group Membership please contact imghi at email@example.com for more information. Access and use of Enterprise Membership and Group Membership accounts is subject to these Terms, including specifically this Section II, which only apply to these account types. In the case of a conflict, the terms in this Section II will control over any other provision in these Terms.
(c) License to Enterprise Customer and Enterprise Users. Subject to these Terms, imghi grants to Enterprise Customer a limited, revocable, non-assignable, non-transferable, non-sub-licensable, and non-exclusive right to permit Administrator and Enterprise Users to access the System and use the Service.
(d) Administrator Responsibilities. Administrator must comply with these Terms, including, without limitation, the prohibition against sharing account access with other users, and any other applicable terms and conditions. Administrator may have the ability to create, view, control, configure, and terminate Enterprise User accounts. imghi is not responsible for managing or administering Enterprise Users' accounts. Administrator is responsible for forwarding any communication or notice from imghi to the appropriate personnel within Enterprise Customer.
(e) Enterprise User Responsibilities. Enterprise Users must comply with these Terms, including, without limitation, the prohibition against sharing account access with other users, and any other applicable terms and conditions. If Administrator or an Enterprise User (1) violates these Terms or other applicable terms and conditions; or (2) uses the Service in a manner that imghi reasonably believes will cause it liability, then imghi may request that the Enterprise Customer suspend or terminate that Administrator or Enterprise User account, or if reasonably necessary in imghi' discretion, imghi may do so without notice and without liability.
(f) Indemnification by Enterprise Customer. In addition to other indemnification obligations under these Terms, Enterprise Customer will release, indemnify, defend and hold harmless imghi, and any of its parents, affiliates, officers, directors, employees, agents, partners, licensors, and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorneys' fees and expenses, of third parties relating to or arising out of use of the Service by Administrator or Enterprise Users.
III. Enterprise Services Quotes
(a) Acceptance; Expiration. Enterprise Customer may accept, without modification, a written quote for enterprise services provided by imghi, including an identification of services to be provided by imghi ("Enterprise Services"), applicable usage limitations or restrictions, applicable rates, and any other specified terms ("Enterprise Quote") by returning to imghi a duly-executed copy of the Enterprise Quote before the earlier of (1) any expiration date indicated on the Enterprise Quote or (2) 30 days from the date of the Enterprise Quote. If Enterprise Customer does not return a duly-executed unmodified copy of the Enterprise Quote to imghi by the earlier of those two dates, the Enterprise Quote will be automatically withdrawn and no longer capable of being accepted unless agreed otherwise in writing by imghi. Modifications to the Enterprise Quote are not binding unless agreed in writing by imghi.
(b) Availability of Enterprise Services. Beginning no later than 5 days after Enterprise Customer returns a duly-executed copy of the unmodified Enterprise Quote to imghi, imghi will make available the Enterprise Services as described on the Enterprise Quote, and, if applicable, commence work on any custom-engineering services specified in the Enterprise Quote. Enterprise Services will be deemed accepted by Enterprise Customer if no written rejection is received by imghi from Enterprise Customer within 10 days of first availability of the Enterprise Services.
(c) Payment. Enterprise Customer will pay imghi the amounts indicated on the Enterprise Quote without deduction or setoff. Payment will be made (1) in U.S. Dollars; (2) within 30 days of first delivery by imghi of the Enterprise Services; and (3) in accordance with remittance instructions in any invoice provided by imghi. Payments under an Enterprise Quote are due and payable whether or not imghi provides an invoice. Beginning the day after a payment is due, interest will be due and payable by Enterprise Customer at the rate of one and one-half percent (1.5%) per month on any unpaid amount. Payments are nonrefundable. Payments required under an Enterprise Quote are "fees" as that term is used in these Terms. Enterprise Customer's obligation to make any payment due will survive termination of the Services.(d) Suspension or Termination for Non-Payment. imghi reserves the right in its sole discretion to suspend or terminate an Enterprise Customer's access for failure to remit payment as provided for in Section III(c). When Enterprise Customer's access is suspended or terminated for non-payment, Enterprise Users' and Administrator's access is also suspended or terminated. imghi may require payment of all outstanding fees, including interest, before restoring Enterprise Customer's access.
IV. Other Terms and Conditions
Additional terms and conditions may apply to specific components or features of the Service, all of which terms are incorporated in these Terms by reference. You must read, accept, and agree to be bound by any such additional terms and conditions in order to use those particular components or features.
If there is a conflict between these Terms and the terms and conditions applicable to a specific component or feature of the Service, the specific terms and conditions shall control with respect to your use of that component or feature of the Service.
Iris & PhishEye
(a) Additional Terms. The following additional Terms apply to those portions of the Service presently named Iris ("Iris") and PhishEye ("PhishEye"). imghi reserves the right to alter, change, update, modify, or suspend all functionality of Iris and PhishEye. Iris and PhishEye are made available to Enterprise Customers as optional features of the Service and use of Iris and PhishEye are subject to these Terms of Service. For additional information on Iris and PhishEye, please contact imghi at firstname.lastname@example.org.
(b) imghi Reputation Engine. Iris and PhishEye make use of certain imghi Data and Partner Data to generate a "risk score" for each domain name and IP address recorded and analyzed by the Service. This risk score provides an estimate of the maliciousness of the domain name or IP address, including a likelihood that the domain name or IP address is involved in criminal or quasi-criminal activities. The risk score, its meaning, and the methods and algorithms used to generate the risk score are collectively the imghi Reputation Engine (or "DTRE"). DTRE uses sophisticated and complex algorithms but is ultimately an opinion generated by the System. Accordingly, in no circumstances will imghi be liable for defamation, libel, or any similar claim as a result of the DTRE and all components of the Service used to generate DTRE risk scores.
(c) DTRE Limitations. The DTRE does not guarantee that a given domain name or IP address will contain malicious code or be used in a criminal or quasi-criminal manner. DTRE uses Partner Data and imghi cannot be responsible for errors within the Partner Data. Accordingly, imghi provides DTRE subject to these Terms, specifically including Sections V(g), VI, VII(a), XI, and XII.
(d) Passive DNS. imghi purchases Passive DNS data from third parties and this data is included in the Partner Data and may be accessed or viewed only via Iris. Passive DNS data is not available via the imghi API. imghi provides Passive DNS data subject to these Terms, specifically including Sections V(g), VI, VII(a), XI, and XII.
(e) Iris Investigations. Iris includes the ability to save user search queries and the resulting search results, including imghi Data and Partner Data for later reference (the saved queries and results are the "User Investigations"). You agree that imghi is the sole owner of all User Investigations and by using Iris, you irrevocably transfer all right, title, and interest in and to Your User Investigations to imghi. Further, imghi is not responsible for the loss of User Investigations for any reason, including its own mistake, negligence, gross negligence, or any cause included within Section XV(l).
(f) Security. imghi does not prohibit You from using the Service (including Iris, PhishEye, DTRE, and/or other imghi Data or Partner Data) for security-related uses, including the prevention of unauthorized access or harm to Your own computers or networks. You expressly acknowledge and agree that You assume all risk related to any security-related use of the Service, Iris, PhishEye, and all components thereof, including DTRE. You further acknowledge and agree that if You choose to rely upon the Service or any imghi Data or Partner Data for any security-related use, that You will not attempt to hold imghi liable for liabilities, claims, damages, costs, and expenses, including reasonable attorneys' fees and expenses You may suffer as a result of such reliance.
V. Restrictions on Use
(a) Permitted Use. You agree to use the Service only for purposes permitted by these Terms and any applicable law or regulation.
(b) Compliance With Laws, Regulations and Requirements. You will not use the Service for illegal purposes (allow, enable, or otherwise support the transmission by e-mail, telephone, postal mail, facsimile or other means of mass unsolicited, commercial advertising or solicitations) but will abide by and comply with all applicable local, state, national, and international laws and regulations in your use of the Service (including laws regarding the transmission of technical data exported from the United States). You will not use the Service, Partner Data, or imghi Data to access without authorization any protected computer as such terms are defined by the Computer Fraud and Abuse Act, 18 U.S.C. § 1030.
(c) Non-Interference. You will not interfere with or disrupt (1) the use and enjoyment of the Service by other users; or (2) the Service or System, including servers or networks connected to the Service (including, without limitation, any attempt to gain unauthorized access to other computer systems or networks connected to the Service).
(d) Excessive Use. You acknowledge that excessive use of network bandwidth associated with the Service risks degrading the quality of the System, which could negatively impact the use and enjoyment by others of the Service or impose undue costs on imghi. imghi may terminate or place reasonable restrictions on your use of the Service if it determines, in its sole discretion, that your use of the Service is excessive or puts unreasonable stress on the System.
(e) No Unauthorized Automated Access. You may not use any "deep-link", "page-scrape", "robot", "spider" or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Service or any Partner Data or imghi Data, or to in any way reproduce or circumvent the navigational structure or presentation of the Service, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Service, such as the imghi API, and subject to applicable additional terms and conditions.
(f) No Resale. You may not resell, rent, trade, or copy the Service, Partner Data or imghi Data, the use of or access to the Service, Partner Data, or imghi Data, or any portion thereof, except as otherwise agreed in writing between you and imghi. If you are interested in reselling the Service, please contact imghi at email@example.com for more information.
(g) Information and Access Not Guaranteed. You acknowledge that the Service, and any information available through the Service, including Partner Data and imghi Data, may not always be available, complete, or accurate, and that the Service may not always satisfy your anticipated or required level of performance. Further, you understand and acknowledge that despite the exercise of commercially reasonable efforts on the part of imghi, some of the information available through the Service, including Partner Data or imghi Data, may be inaccurate, incomplete, or become unavailable, or may be different in scope or content from information available from other imghi services. Under no circumstances shall imghi be liable for Your reliance on the accuracy of any Partner Data accessed via the Service.
(h) No Reverse Engineering. You may not (and will not allow any third party to) reverse engineer, decompile, disassemble, or otherwise attempt to discover any source code, object code or underlying structure, ideas or algorithms of the Service or any software, documentation or data related to or provided with the Service.
(i) No Derivative Works. Except as expressly authorized by imghi, you agree not to copy, modify, rent, lease, loan, sell, distribute, or create derivative works based, in whole or in part, on the Service, Partner Data, or imghi Data. No portion of the Service may be reproduced in any form or by any means, except as expressly permitted in these Terms.
(j) No Modification or Circumvention. You agree not to modify the Service or System in any manner or form, or to use modified versions of the Service, including (without limitation) for the purpose of obtaining unauthorized access to the Service, System, Partner Data, or imghi Data. You agree not to access the Service or System by any means other than through an interface provided by imghi for use in accessing the Service. You may not knowingly use or access the Service to create, improve, verify, or support (directly or indirectly) a product or service competitive to the Service, including, without limitation, any other domain registration information service.
VI. imghi' Proprietary Rights
Except for the licenses expressly granted herein, imghi retains all rights and interest in: (1) the Service, System, and all other materials, tools, templates, matrices, documentation, technology, or APIs developed by or on behalf of imghi or provided by imghi, under these Terms, the API Terms, an Enterprise Quote, or otherwise; (2) all other proprietary information, products, and services of imghi; (3) all customizations, modifications, enhancements, derivative works, configurations, translations, upgrades, and interfaces in and to each of the items in (1) and (2) above; (4) the intellectual property rights in and to each of the items in (1) through (3) above; and (5) the ideas, concepts, techniques, inventions, processes, software, or works of authorship developed, embodied in, or practiced in connection with the Service. imghi does not claim proprietary rights to any Partner Data except as otherwise agreed between imghi and the owner of the Partner Data.
VII. Third-Party Rights, Services, and Data
(a) Third Party Services and Data. imghi is not responsible for, and does not endorse or guarantee the availability of, third-party websites or other resources, which may be accessed in connection with or by using the Service, specifically including any Partner Data accessed as part of the Service. Because imghi may have no control over such third-party websites or resources, you acknowledge and agree that imghi will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any such content, advertising, goods or services, or other materials on or available from such third-party websites or resources.
(b) Third Party Rights. Content or information available through the Service, including Partner Data and imghi Data, may be protected by third parties' copyrights, trademarks, service marks, patents, or other proprietary rights and laws, all of which are the property of their respective owners.
(c) Display of Third Party Advertising. imghi may, in its sole discretion, advertise on behalf of third parties, including third parties who sell or make available for purchase domain names. imghi expressly disclaims any liability related to the availability of and pricing for any domains displayed on the Service.
IX. imghi' License to Your Submissions
You give imghi a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, and distribute any queries submitted to the Service and any resulting Partner Data or imghi Data.
X. IndemnityYou will release, indemnify, defend, and hold harmless imghi and any of its parents, affiliates, officers, directors, employees, agents, partners, licensors, and assigns from all liabilities, claims, damages, costs, and expenses, including reasonable attorneys' fees and expenses, of third parties relating to or arising out of: (1) these Terms or the breach of your warranties, representations and obligations under these Terms; (2) your use of the Service; (3) your use of imghi Data or Partner Data; (4) any use of your account or Account Credentials, whether or not such use was authorized by you; (5) any intellectual property or other proprietary right of any person or entity; (6) your violation of any of the provisions of these Terms; (7) any action taken by imghi as part of its investigation of a suspected violation of this Terms or as a result of imghi' determination that a violation of this Terms has occurred; (8) any information or data you supplied to imghi, including, without limitation, any incorrect information in your Registration Data; or (9) your violation of any rights of a third party.
When imghi is threatened with suit or sued by a third party, imghi may seek written assurances from you concerning your promise to indemnify imghi; your failure to provide those assurances may be considered by imghi to be a material breach of these Terms. imghi will have the right to participate in any defense by you of a third-party claim related to your use of any of the Service, with counsel of imghi' choice at its expense. imghi will reasonably cooperate in any defense by you of a third-party claim at your request and expense. You will have sole responsibility to defend imghi against any claim, but you must receive imghi' prior written consent regarding any related settlement.
XI. DISCLAIMER OF WARRANTIES
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. imghi EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE, ANY imghi DATA OR PARTNER DATA, AND ANY GOODS OR SERVICE OBTAINED ON OR THROUGH THE SERVICE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, imghi MAKES NO WARRANTY: (1) THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (2) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY imghi DATA OR PARTNER DATA OR THAT DEFECTS IN THE SERVICE OR imghi DATA OR PARTNER DATA WILL BE CORRECTED; OR (3) REGARDING ANY imghi DATA OR PARTNER DATA (DOWNLOADING OR ACCESS IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM DOWNLOADING OR ACCESSING imghi DATA OR PARTNER DATA).
imghi DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND imghi DISCLAIMS ANY LIABILITY RELATING THERETO.
YOU FURTHER ACKNOWLEDGE THAT THE SERVICE IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA, OR INFORMATION PROVIDED BY THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM imghi OR THROUGH OR FROM THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
XII. LIMITATION OF LIABILITY
imghi AND ITS PARENTS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (1) THE USE OR THE INABILITY TO USE THE SERVICE; (2) THE COST OF PROCURING SUBSTITUTE GOODS AND SERVICES; OR (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA THROUGH THE SERVICE, EVEN IF imghi HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. imghi WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL, OR EXEMPLARY DAMAGES, WHETHER SUCH INTERRUPTION, SUSPENSION, OR TERMINATION WAS JUSTIFIED OR NOT, NEGLIGENT OR INTENTIONAL, INADVERTENT, OR ADVERTENT.
imghi' ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO ANY SERVICES PROVIDED UNDER THESE TERMS AND/OR FOR ANY BREACH OF THESE TERMS IS SOLELY LIMITED TO THE AMOUNT YOU PAID TO imghi FOR THE SERVICE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
XIII. Notices and Announcements
You authorize imghi to notify you of information that imghi deems may be of potential interest to you. Notices and announcements may include commercial emails and other notices describing changes, upgrades, new products and services, or other information. All notices must be sent either in writing (including email, but only to the extent expressly provided herein). All written notices to imghi shall be delivered to imghi LLC, Attention: Legal, imghi, LLC, 2101 4th Ave., Suite 1150, Seattle, WA 98121. All notices to you may be delivered to your mailing address or email address as provided in your account information (as provided and maintained by you pursuant to these Terms). imghi may also provide notices of changes to these Terms or any other matter by displaying notices to you generally on the imghi website.
XIV. Termination and Survival
(a) By imghi. imghi may terminate, limit, or suspend your account or access to the Service at any time, immediately and without notice (1) in the event you breach these Terms, including without limitation by failing to make any payment when due; (2) fail to respond within 10 days to an inquiry from imghi concerning the accuracy or completeness of your Registration Data; (3) if imghi determines in its sole discretion that you have violated these Terms; or (4) for any other reason, without cause and without liability.
(b) By You. You may terminate your membership or stop accessing or using the Service at any time. You may terminate using account settings on the imghi website.
(c) Insolvency of Enterprise Customer. imghi may terminate, limit, or suspend an Enterprise Customer's account or its access to the Service at any time, immediately and without notice if Enterprise Customer (1) admits in writing its inability to pay its debts generally as they become due; (2) makes a general assignment for the benefit of its creditors; (3) institutes proceedings, or has proceedings instituted against it seeking relief or reorganization under any laws relating to bankruptcy or insolvency; (4) has a court of competent jurisdiction appoint a receiver, liquidator, or trustee over all or substantially all of Enterprise Customer's property or provide for the liquidation of Enterprise Customer's property or business affairs; or (5) fails to make timely payments for Services as provided for in Section III(c) of this Agreement.
(d) Effect of Termination. You will not receive any refund for payments already made by you as of the date of termination. If termination is due to your breach of these Terms, you will bear all costs of such termination, including any reasonable costs imghi incurs in closing your account or disabling or preventing your further access. You will pay any and all costs incurred by imghi in enforcing your compliance with these Terms. Upon termination, you shall destroy all copies of imghi Data and/or Partner Data. Notwithstanding termination of these Terms by you or by imghi, the provisions in these Terms shall remain in full force and effect. Upon termination, you will no longer have access to any data or information you had previously created, maintained, managed, or stored in or through the Service and imghi is under no obligation to maintain, provide access to, or preserve any such data or information. imghi may, in its discretion, destroy or retain your account and all associated data and information.
(e) Survival. The following terms survive termination of these Terms or the Services: Sections I(d), I(f), I(g), I(h), I(j), I(k), I(l), II(f), III(c), IV, V, VI, VII, VIII, X, XI, XII, XIII, XIV(d), and XV, as well as any other provision that expressly states that it survives termination.
(a) Entire Agreement. These Terms constitute the entire agreement between imghi and you with respect to the Service. No prior or contemporaneous written, oral, or electronic representation form a part of these Terms, and these Terms supersede all prior and contemporaneous electronic, oral, and written agreements, negotiations, and representations between imghi and you relating to the subject matter of this Terms; provided that, where applicable, these Terms also include (1) the API Terms; (2) any Enterprise Quote; or (3) any other writing signed by both you and imghi.
(b) Amendments in Writing. No amendment, modification, or supplement to the Terms will be effective unless it is in writing and signed by authorized representatives of both imghi and you.
(c) No Assignment. Your obligations under this Agreement are personal. Without imghi' express written consent, you cannot assign any rights or delegate any duties under these Terms. Any purported assignment or delegation in violation of this section is void.
(d) Enterprise Customers–Successor and Related Entities. These Terms are binding on any corporation, partnership, limited liability company, joint venture or other legal entity that an Enterprise Customer owns in whole or part, or which owns any interest in Enterprise Customer, or which is commonly owned or controlled in whole or part with Enterprise Customer, including any successor entity resulting from a merger with or acquisition of Enterprise Customer.
(e) No Third-Party Beneficiaries. These Terms are not intended to, and will not be construed to, provide any rights, remedies, or benefits to or for any person or entity not a party to this Terms.
(f) Effect of Waiver. The failure of either imghi or you at any time to enforce any right or remedy under these Terms with respect to any breach or failure by the other party will not be construed to be a waiver of such right or remedy with respect to any other breach or failure by the other party.
(g) Arbitration. Any controversy or claim arising out of or relating to these Terms, or the breach thereof, or your access to or use of the Service shall be resolved exclusively by arbitration administered by the American Arbitration Association ("AAA") and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA. You further agree that (1) the arbitration will be held in Seattle, Washington; (2) the arbitrator shall apply the laws of the State of Washington, without regard to its conflict of law principles to the contrary; (3) you waive any right to proceed in arbitration on a class or representative basis; (4) arbitration can resolve only claims between you and imghi; (5) the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; and (6) all parts of this clause are severable, meaning that if any part is deemed unenforceable, the remainder of the clause will remain in effect and construed in accordance with its terms.
(h) Governing Law. These Terms will be governed by the laws of the State of Washington without regard to its conflict of law principles to the contrary, except that the Arbitration provision above shall be governed by the Federal Arbitration Act.
(i) Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms or your access to or use of the Service must be filed within 1 year after such claim or cause of action arose or be forever barred.
(j) Interpretation and Severability. If any provision of these Terms is held to be invalid, void, or unenforceable, the remaining provisions will remain in full force and effect. The language of these Terms will be construed as a whole according to its fair meaning, and not strictly for or against any party. As used in these Terms: (1) words and terms capitalized for purposes of definition will carry the same meaning throughout; (2) the singular will also indicate the plural and vice versa; and (3) a word modified by an article (such as "the" or "an" or "a") does not necessarily mean that just one of the subject exists.
(k) Headings. The section headings in these Terms are for convenience only and have no legal or contractual effect.
(l) Force Majeure. Neither party will be deemed in default hereunder, nor will it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this section (1) will give the other party written notice thereof promptly and, in any event, within 10 days of discovery thereof and (2) will take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this section extends for a period in excess of 30 days in the aggregate, imghi may immediately terminate these Terms and/or your access to or use of the Service.