Welcome, and thank you for your interest in Anthology! We appreciate you reviewing and following these guidelines so that we can continue to be your favored photography platform. These terms of service (“Terms”) are between you and Anthology Corp. (“Anthology,” “we,” “our,” or “us”), and establish the terms that apply to you when you use the Service (as defined below).
BY USING THE SERVICE OR BY CLICKING “I AGREE” YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND YOUR AGREEMENT TO BE BOUND BY THESE TERMS. YOU MAY NOT USE THE SERVICE IF YOU DO NOT AGREE TO THESE TERMS. We are constantly improving the Service, so these Terms may need to change as we do. We can change these Terms at any time, and if we do, we will make reasonable efforts to provide you with prior notice of any material changes. Your continued use of the Service after any change to these Terms means that you accept the new version. You should consult these Terms each time you access the Service to view any changes. These Terms were last modified on the date indicated above.
AS DESCRIBED BELOW, THESE TERMS PROVIDE FOR THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND LIMIT THE REMEDIES AVAILABLE TO YOU IN A DISPUTE. YOU CAN OPT OUT OF THIS AGREEMENT TO ARBITRATE BY CONTACTING SUPPORT@ANTHOLOGY-US.COM WITHIN 30 DAYS AFTER FIRST ACCEPTING THESE TERMS AND STATING YOUR FIRST AND LAST NAME AND THAT YOU DECLINE THIS AGREEMENT TO ARBITRATE.
1. Use of the Service.
A. Service. The “Service” includes: (1) Anthology’s website (located at www.anthology-us.com) (the “Site”) and iOS apps (the “Apps”) as may be updated, relocated, or otherwise modified from time to time; (2) the platform available through the Site and Apps that enables photographers to store, share, and sell their photography and photography-related services; and (3) all content on the Site and Apps and all intellectual property rights arising out of or related to the foregoing. Any person who accesses or uses the Service, whether on their own behalf or on behalf of any third party, is a “User.”
B. License. Subject to your compliance with these Terms, Anthology hereby grants you a non-exclusive, revocable, non-transferable license to access the Site and to download a copy of the Apps; in each case, solely for your personal use.
C. User-to-User Transactions. Each User selling products (e.g., photos) or services (e.g., photography services) through the Service (each, a “Seller”) to another User (a “Buyer”) is responsible for providing such products or services (“User-Provided Products and Services”). Anthology merely makes the Service available to enable Sellers and Buyers to find and transact directly with each other. Through the Service, Sellers may be notified of Buyers that may be seeking the services they offer, and Buyers may be notified of Sellers that may offer the services they seek; at all times, however, Users are responsible for evaluating and determining the suitability of any User-Provided Products and Services, Buyer or Seller on their own. If Users decide to enter into an agreement for User-Provided Products and Services, such agreement is directly between the Users and Anthology is not a party to that agreement. With respect to any such agreement, Buyers and Sellers may enter into any written terms that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.) provided that any such agreements do not conflict with, narrow, or expand Anthology’s rights and obligations under these Terms. If you are a Seller, you agree to honor any commitments you make to any Buyer, and you agree to be solely liable for your listing, sale, performance, and delivery of User-Provided Products and Services. If you are a Buyer, you agree to honor any commitments you make to any Seller, including payment obligations. Buyers and Sellers will comply with all applicable laws regarding their purchase or provision, respectively, of User-Provided Products and Services, including any regulations regarding taxes, intellectual property law, publicity rights, and attribution rights.
2. Anthology’s Role.
A. Anthology as a Technology Platform. Anthology enables Users to buy and sell products and services related to photography. You acknowledge that Anthology is a technology platform, and is not creating, producing, selling, or distributing the User-Provided Products and Services itself. Anthology has no control over and does not guarantee: (1) the existence, quality, safety, or legality of the User-Provided Products and Services; (2) the truth or accuracy of Users' listings; (3) the qualifications, background, or identities of Users; (4) the ability of Sellers to sell items; (5) the ability of Buyers to pay for items; or (6) that a Buyer or Seller will actually complete a transaction or return an item. Anthology is not a party to the relationship between Buyers and Sellers.
B. Disclaimer. ANTHOLOGY DOES NOT PERFORM ANY BACKGROUND CHECKS ON USERS, OR SCREEN FOR OR GUARANTEE THE SUITABILITY, SAFETY, OR LEGALITY OF ANY USER-PROVIDED PRODUCTS AND SERVICES. IT IS SOLELY YOUR RESPONSIBILITY TO DETERMINE IF THE USER-PROVIDED PRODUCTS AND SERVICES MEET YOUR NEEDS AND EXPECTATIONS. BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO MATERIALS OR SITUATIONS THAT ARE UNSAFE, OFFENSIVE, HARMFUL, OR OTHERWISE OBJECTIONABLE.
3. Accounts; Registration; Restrictions.
A. Anthology Users. To access most features of the Service, you must register for an account. You must complete the registration process by providing us with current, complete, and accurate information, as prompted by the applicable registration form.
B. Accuracy of Information. You acknowledge that if you provide any information to us that is not current, complete, or accurate, Anthology may terminate these Terms and your continued access and use of the Service. You agree to update your information if it is no longer current, complete, and accurate.
C. Closing your Account. You may close your account at any time and without cost, but you will remain liable for any outstanding purchases as well as any fees or other charges incurred in connection with your account. Anthology will not issue refunds for amounts previously incurred through our Service once you close your account. You can close your account by emailing firstname.lastname@example.org.
D. Eligibility. You represent and warrant that: (1) you are at least 18 years of age; (2) you have not been previously suspended or removed from the Service; and (3) your registration and your use of the Service is in compliance with all applicable laws. Anthology provides the Service from the United States. If you are using the Service from outside the United States, the Service may not be appropriate or permitted under applicable law. It is your responsibility to use the Service in accordance with all applicable law in any jurisdiction that applies to you.
E. Credentials. As part of the registration process, you might be asked to select a username, password, or other login credentials. You are responsible for maintaining the security and confidentiality of your login credentials. You agree to notify Anthology immediately of any unauthorized use of your account or any other breach of security. To notify us, contact us at email@example.com. You are responsible for all use of the Service occurring under your account and all content posted with your account on the Service. You may not share your login credentials with any third party. Anthology will not be liable for any loss that you incur as a result of someone else using your login credentials or account.
F. Your Responsibilities. You may use the Service solely for lawful purposes, and you may not (and you may not allow or assist any third party to):
(1) use the Service to sell products and services other than those related to photos and photography;
(2) use the Service to transfer money or process a payment transaction that is unrelated to the purchase of User-Provided Products and Services;
(3) if you are a Buyer, fail to pay for the User-Provided Products and Services you purchase;
(4) if you are a Seller, fail to deliver or provide the User-Provided Products and Services sold by you or post false, inaccurate, misleading, or deceptive listing descriptions;
(5) manipulate the price of User-Provided Products and Services or interfere with any other User’s listings;
(6) use, copy, modify, create derivative works, install, transfer, or distribute the Service, except as specifically described in these Terms and any usage limitations communicated to you;
(7) rent, lease, or otherwise permit third parties to use the Service, or reformat, mirror, or frame any portion of the Service;
(8) circumvent or disable any security features of the Service, or probe, scan, or test the vulnerability of the System;
(9) gain unauthorized access to the Service, to other Users’ accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;
(10) use the Service to distribute any viruses or other malicious code, or to transmit large amounts of data in a way that would be expected to have a detrimental effect on the Service;
(11) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or reproduce or circumvent the navigational structure or presentation of the Service or its contents;
(12) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms related to the Service (except to the extent this restriction is prohibited by applicable law);
(13) use the Service to transmit or publish (i) any content or information that is unlawful, fraudulent, threatening, harassing, abusive, hateful, libelous, defamatory, obscene or otherwise objectionable, (ii) any material, non-public information about individuals or companies without the authorization to do so, (iii) any trade secret of any third party, and/or (iv) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by us), or engage in spamming or flooding;
(14) restrict, discourage, or inhibit any other User from using the Service;
(15) disclose personal information about a third party or another User on the Service or obtained from the Service without the consent of such third party or User, or solicit, harvest, or collect information about other Anthology Users without their consent;
(16) violate any applicable international, federal, state, provincial, or local laws or regulations;
(17) use the Service in violation of Anthology’s or any third party's intellectual property or other rights;
(18) express or imply that any statements you make are endorsed by Anthology, without our prior written consent in each instance; or
(19) use or access the Service to build a competing service.
We may take any legal action and implement any technical remedies to prevent the violation of these restrictions and to enforce these Terms.
4. Fees and Payment.
A. Sellers. If you are a Seller, the following terms apply to you:
(1) User-Provided Product and Service Sales. When a Buyer purchases your User-Provided Products and Services, the Buyer will submit payment to you through our third-party payment processor. Anthology is not a party to any transaction between you and any other User. It is your responsibility to determine what taxes, if any, apply to each sale. You agree to withhold, collect, report, and remit the applicable taxes to the appropriate tax authorities. Anthology is not responsible for withholding, collecting, reporting, or remitting any tax arising from any transaction on the Service.
(2) Transaction Fees. You agree to pay transaction fees based on the value of each User-Provided Product or Service sold through the Service, in accordance with our Schedule of Fees (“Transaction Fees”). Transaction Fees are subject to change, and when you complete a transaction, the then-current Transaction Fee listed on the Schedule of Fees will apply to that transaction.
(3) Shipping. You may not ship any product or package to another User that contains weapons, ammunition, explosives, living or infectious biological matter, human remains, pornography, alcohol, prescription drugs, illegal drugs, currency, dangerous goods, hazardous goods, or other goods that may not be shipped or mailed under applicable law. Anyone who sends, or causes to be sent, a prohibited, illegal, or improperly packaged or labeled material can be subject to legal penalties, including civil penalties, fines, and/or imprisonment, including those specified in 18 U.S.C. § 1716 and 39 U.S.C. § 3018. Anthology is not responsible for the shipping of products from Sellers to Buyers, and will not be liable for any losses, damages, or delays related to shipping.
B. Buyers. If you are a Buyer, the following terms apply to you:
(1) User-Provided Product and Service Purchases. You may purchase User-Provided Products and Services via the Service. When you submit payment for User-Provided Products and Services, your payment will be processed by our third-party payment processor, and the funds will go to the Seller. Anthology is not a party to any transaction between you and any other User.
(2) Shipping. Anthology is not responsible for the shipping of products from Sellers to Buyers, and will not be liable for any losses, damages, or delays related to shipping.
C. Payment Processing. All payment processing services are provided by our third-party payment processors, which may include Stripe Inc. (“Stripe”). Stripe uses your credit card to make payments. The processing of credit card charges or credits, as applicable, relating to your use of the Service will be subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). You hereby agree to be bound by the Stripe Services Agreement, which may be modified by Stripe from time to time as set forth therein. As a condition of Anthology enabling payment processing services through Stripe, you agree to provide Anthology with current, accurate, and complete information about you and your payment methods (billing address, credit card number, expiration date, etc.) and you authorize Anthology to share it and transaction information related to your use of the payment processing services provided by Anthology.
D. Returns. Refunds and policies are determined on a case-by-case basis between Seller and Buyer. Anthology is not responsible for refunds or returns and does not facilitate such transactions.
5. Content Submitted to the Service.
A. User Content. The Service permits Users to upload and publish content to the Service, which may include photographs, other images, and corresponding text, as well as App store reviews and ratings (“User Content”). You own any User Content you provide. Except as expressly described in these Terms, no ownership rights in the User Content are transferred to Anthology by these Terms.
B. Responsibility for User Content. You are solely responsible for your User Content and the consequences of posting it on the Service. None of the User Content will be subject to any obligation, whether of confidentiality, attribution, or otherwise, on our part and we will not be liable for any use or disclosure of any User Content. Anthology may (but is not obligated to) remove or alter any User Content at any time for any reason. You represent and warrant that you will not upload to the Service or otherwise provide any User Content including or depicting: pornographic or sexual conduct; extreme violence or harm; childhood endangerment; gambling; or any content that violates local or federal laws. We neither endorse nor are responsible for any User Content. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages, or for any results obtained from the use of such information. The opinions expressed on the Service by Users reflect solely the opinions of the Users and do not reflect the opinions of Anthology. If you believe User Content violates these Terms or any policies we provide, please contact Anthology immediately at firstname.lastname@example.org so that we can consider its editing or removal. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You hereby waive any legal or equitable right or remedy you may have against Anthology with respect to User Content.
C. Messages. The Service may allow Anthology Users to exchange messages (“Messages”) with each other. Sending Messages is a privilege, not a right, and Anthology may terminate such privileges of any User at any time and for any reason. If a User sends you an objectionable Message, please contact Anthology immediately at email@example.com. You are solely responsible for the content of any Message you send. You agree that Anthology may monitor Messages for compliance with these Terms, and Messages should not be considered confidential or proprietary.
6. Optional Third-Party Services. Anthology and third parties may make available integrations between the Service and third-party products or services, including plugins and related services such as Facebook, Instagram, Google, and Apple (“Third-Party Services”) that you may elect to use. Any use by you of such Third-Party Services is solely between you and the applicable Third-Party Service provider. Because the Third-Party Services rely on the Third-Party Service provider’s continued operation, Anthology does not warrant or provide support for Third-Party Services. Anthology is not responsible for any violations of applicable law by Third-Party Service providers, or for any liability arising from your use of Third-Party Services. Anthology does not guarantee the continued availability of any Third-Party Services (or any integration with Third-Party Services or related Service features), and if such Third-Party Services or related features are discontinued, you will not be entitled to any refund, credit, or other compensation. Depending on your location, certain Third-Party Services may not be available to you.
A. Anthology IP. The Service, including any content, modifications, and updates, and all intellectual property rights therein (collectively, “Anthology IP”), is owned by Anthology and its licensors. No ownership rights in the Anthology IP are transferred to you by these Terms. You do not have any rights in or to the Anthology IP except for the limited express rights granted in these Terms.
B. Trademarks. You acknowledge that Anthology has acquired, and is the owner of, common law or registered trademark rights in the name and word mark "Anthology" and in the other marks and design marks displayed on the Service. You acknowledge that these names and marks are famous and internationally known. You will not challenge the validity of, or Anthology’s ownership of, the foregoing names or marks, and you waive any rights you may have to do so. You may not use our names or marks in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. All use of the foregoing names and marks by you will inure exclusively to Anthology’s benefit.
C. Feedback. If you give Anthology feedback, comments, or suggestions concerning the Service (collectively, “Feedback”), you hereby assign to Anthology all right, title, and interest in and to the Feedback, and Anthology is free to use the Feedback without payment, attribution, or restriction.
8. Claims of Copyright Infringement. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by Anthology infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information:
A. a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
B. identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Service are covered by a single notification, a representative list of such works);
C. identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Anthology to locate the material on the Service;
D. the name, address, telephone number, and email address (if available) of the complaining party;
E. a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
F. a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Anthology a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see www.copyright.gov for details. Notices and counter-notices with respect to the Service should be sent to firstname.lastname@example.org. We suggest that you consult your legal advisor before filing a notice or counter-notice. Be aware that there can be penalties for false claims under the DMCA.
9. Confidentiality. In the course of providing the Service, Anthology may disclose or make available to you information about its business. You acknowledge that all knowledge, information, and data provided by Anthology to you with respect to the business, operations, and marketing of Anthology’s products and services that is not generally known or publicly available, whether or not designated as “confidential,” is Anthology’s confidential information and you will not use or disclose such confidential information to any third party without Anthology’s prior written consent.
A. Usage Data. Anthology may collect and analyze data relating to your use of the Service that is aggregated and/or de-identified in such a way that it is not associated with you (“Usage Data”) and other information relating to the provision, use, and performance of various aspects of the Service and related systems and technologies (including information provided by third-party analytical tools). Anthology may analyze, process, collect, and use Usage Data for any purpose, including for improving the Service and developing new products, services, features, and functionality.
B. Special Notice for International Use. Recognizing the global nature of the Internet, you agree to comply with all applicable laws regarding the transmission of data exported from the United States or the country in which you reside. If you are using the Service from the European Union or other regions with laws governing data collection and use, then you agree to the transfer and processing of your information to and in the United States.
11. Consent to Electronic Communications.
A. Administrative Communications. By using the Service, you agree that we may communicate with you electronically regarding registration, security, privacy, and administrative issues relating to your use of the Service.
B. Consent. You consent to receiving our email newsletter and other marketing-related emails from us. If you wish to remove yourself from our email list for such marketing-related emails, please use the unsubscribe link in any email received from us.
12. Term and Termination.
A. Term. The term of these Terms will commence on the date on which you first access or use the Service and will continue as long as you continue until terminated.
B. Termination. If you breach (or if Anthology suspects you have breached) these Terms, Anthology may, in its sole discretion, terminate these Terms and your User account and/or limit, suspend, or terminate your access to the Apps or Service, with or without notice. You may terminate these Terms by contacting us at email@example.com.
C. Effect of Termination. Upon termination of these Terms, you remain obligated to pay any outstanding fees relating to your use of the Service that were incurred prior to termination. The following Sections of these Terms will survive termination of these Terms: 1.A, 1.C, 2-10, 12.C, and 13-23. Either party’s termination of these Terms is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating these Terms.
D. Deactivation. Anthology may, without notice to you: (1) restrict, deactivate, or terminate your access to the Service (or any portion); or (2) terminate or modify the Service (or any portion). Anthology will not be liable to you or any third party for any termination of or modification to the Service regardless of the reason for such termination or modification. If you are dissatisfied with any termination or modification of the Service, your only remedy is to stop using the Service.
13. Representations and Warranties; Disclaimer.
A. User Content. You represent and warrant that: (1) you are the creator and owner of any User Content you provide or otherwise have sufficient rights and authority to grant the rights granted to Anthology in these Terms; (2) Anthology’s use of your User Content in accordance with these Terms will not infringe, violate, or misappropriate any third-party right, including any intellectual property right, proprietary right, or privacy right; (3) your User Content does not contain any viruses, adware, spyware, worms, or other harmful or malicious code; and (4) unless you have received prior written authorization, your User Content does not contain any confidential information of any third party.
B. DISCLAIMER. ANTHOLOGY MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICE, THIRD-PARTY SERVICES, USER-PROVIDED PRODUCTS AND SERVICES, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ANTHOLOGY DOES NOT WARRANT THAT THE SERVICE, THIRD-PARTY SERVICES, OR USER-PROVIDED PRODUCTS AND SERVICES WILL SATISFY YOUR REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE SERVICE, OR THIRD-PARTY SERVICES WILL BE UNINTERRUPTED. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH ANY OTHER USER, AND YOUR PROVISION OR RECEIPT OF ANY USER-PROVIDED PRODUCTS AND SERVICES OR USER CONTENT. Some jurisdictions may limit or prohibit warranty disclaimers, and this Section 13.B will apply solely to the extent permitted under applicable law.
A. Defense. At Anthology’s option and request, you will defend Anthology, its affiliates, and their respective directors, officers, employees, agents, and contractors (the “Anthology Parties”) from any actual or threatened third-party claim, proceeding, or suit arising out of or based on: (1) your breach of any representation, warranty, or covenant in these Terms; (2) your violation of applicable law or any third-party intellectual property, proprietary, or privacy right; (3) any dispute between you and any other User or any third party; or (4) your use of the Service in a manner not authorized under these Terms (each, a “Claim”). If Anthology requests you to defend an Anthology Party from any Claim, Anthology will: (a) give you prompt written notice of the Claim; (b) grant you full and complete control over the defense and settlement of the Claim; (c) provide assistance in connection with the defense and settlement of the Claim as you may reasonably request; and (d) comply with any settlement or court order made in connection with the Claim. Notwithstanding the previous sentence, you may not enter into any settlement that involves an admission of guilt or liability of an Anthology Party without Anthology’s prior written consent. Anthology may participate in the defense of a Claim at its own expense and with counsel of its own choosing.
B. Indemnification. You will indemnify the Anthology Parties from and pay: (1) all damages, costs, and attorneys’ fees finally awarded against an Anthology Party in any Claim; (2) all out-of-pocket costs (including attorneys’ fees) reasonably incurred by an Anthology Party in connection with the defense of a Claim; and (3) all amounts that you agree to pay to any third party to settle any Claim.
15. Limitation of Liability.
A. EXCLUSION OF DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER ANTHOLOGY NOR ANY ANTHOLOGY PARTY WILL BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE SERVICE, INCLUDING LOST PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, EVEN IF ANTHOLOGY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. ANTHOLOGY IS NOT LIABLE FOR ANY DAMAGES, LIABILITY, OR LOSSES ARISING OUT OF YOUR RECEIPT OR PROVISION OF USER-PROVIDED PRODUCTS AND SERVICES OR ANY THIRD-PARTY SERVICES.
B. DAMAGES CAP. ANTHOLOGY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE SERVICE (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE GREATER OF: (1) THE AMOUNT OF FEES PAID BY YOU TO ANTHOLOGY DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION); OR (2) $100.
C. BASIS OF THE BARGAIN. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Release. If you have a dispute with another User, you agree to address such dispute directly with such User. Anthology has no obligation to mediate or otherwise participate in any disputes between Users. You release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees, and agents) from all claims, demands, and damages (actual and consequential) of every kind, known and unknown, arising out of or in any way connected with such disputes. You expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
A. Generally. If you are not a resident of the United States, this Section 17 (Arbitration) will only apply to you to the extent applicable law in your country of residence permits. In the interest of resolving disputes between you and Anthology in the most expedient and cost-effective manner, you and Anthology agree that any dispute arising out of or related to these Terms or your use of the Service will be resolved by binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the expiration or termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ANTHOLOGY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR COLLECTIVE ACTION. YOU FURTHER UNDERSTAND THAT THIS SECTION 17 WILL APPLY TO YOU AND ANTHOLOGY UNLESS YOU CHOOSE TO OPT OUT PURSUANT TO SECTION 17.J (OPT OUT).
Whether to agree to arbitration is an important decision. It is your decision to make, and you should not rely solely on the information provided in these Terms, as they are not intended to contain a complete explanation of the consequences of arbitration. You should take further steps to conduct research and to consult with others, including an attorney, regarding the consequences of your decision, just as you would when making any other important business or life decision.
B. Exceptions. Despite the provisions of Section 17.A (Generally), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (1) bring an individual action in small claims court; (2) bring an action in a court pursuant to the California Private Attorneys General Act of 2004, California Labor Code § 2698 et seq.; (3) seek injunctive relief in a court of law; or (4) file suit in a court of law to address an intellectual property infringement claim.
C. Arbitrator. Any arbitration between you and Anthology will be governed by the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Anthology. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
D. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party within the applicable statute of limitations period (“Notice”). Anthology’s email address for Notice is firstname.lastname@example.org. The Notice must: (1) describe the nature and basis of the claim or dispute; (2) set forth the specific relief sought; and (3) if you are sending the Notice to Anthology, include your name and address (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 45 days after the Notice is received, you or Anthology may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Anthology must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Anthology will pay you the highest of the following: (a) the amount awarded by the arbitrator, if any; (b) the last written settlement amount offered by Anthology in settlement of the dispute prior to the arbitrator’s award; or (c) $1,000.
E. Fees; Location; Language. If you commence arbitration in accordance with these Terms, Anthology will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, New York, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance-based telephone hearing; or (3) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Anthology for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. The language of the arbitration shall be English, unless you do not speak English, in which case the arbitration shall be conducted in both English and your native language.
F. Confidentiality. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties, and the decisions made by the arbitrator, including its awards, except as required by applicable law and to the extent not already in the public domain.
G. No Class Actions. YOU AND ANTHOLOGY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING (OTHER THAN ACTIONS UNDER THE CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT OF 2004, CALIFORNIA LABOR CODE § 2698 ET SEQ., WHICH ARE NOT COVERED BY THIS SECTION 17 (ARBITRATION)). Unless both you and Anthology agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
H. Modifications to this Arbitration Provision. If Anthology makes any future change to this arbitration provision, other than a change to Anthology’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Anthology’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Anthology. If you do not send such written notice, your continued use of the Service following any such change means that you have consented to such change.
I. Enforceability. If Section 17.G (No Class Actions) is found to be unenforceable or if the entirety of this Section 17 (Arbitration) is found to be unenforceable, then the entirety of this Section 17 will be null and void and the exclusive jurisdiction and venue described in Section 21.B (Governing Law) will govern any action arising out of or related to these Terms or your use of the Service.
J. Opt Out. Arbitration is not a mandatory condition of these Terms. If you do not want to be subject to this Section 17 (Arbitration), you may opt out by notifying Anthology in writing of your decision by sending, within 30 days after the effective date of these Terms, an email to email@example.com, stating clearly your full name, address, and intent to opt out of this Section 17. Should you choose not to opt out within the 30-day period, you and Anthology will be bound by the terms of this Section 17. You have the right to consult with counsel of your choice concerning regarding your right to opt out of this Section 17, and you understand that you will not be subject to retaliation if you exercise your right to opt out.
19. Protected Activity Not Prohibited. Nothing in these Terms limit or prohibit you from filing a charge or complaint with, or otherwise communicating or cooperating with or participating in, any investigation or proceeding that may be conducted by any international, federal, state, provincial, or local government agency or commission (“Protected Activity”). In connection with such Protected Activity, you are permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving authorization from, Anthology. In making any such disclosures or communications, you agree to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute Anthology confidential information to any parties other than the applicable government agencies.
20. Compliance with Applicable Law. Each party will comply with all applicable international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements in connection with exercising its rights or performing its obligations under these Terms.
A. Subcontractors. Anthology may use subcontractors or other third parties to perform its obligations under these Terms, but Anthology will remain responsible for all such obligations.
B. Governing Law. These Terms are governed by New York State law without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. Subject to Section 17 (Arbitration), all claims arising under these Terms will be litigated exclusively in the federal or state courts of New York, New York. The parties submit to the jurisdiction of those courts. In any proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees.
C. Injunctive Relief. If you breach Sections 3 (Accounts; Registration; Restrictions), 7 (Ownership), or 9 (Confidentiality), Anthology may suffer irreparable harm, and monetary damages may be inadequate to compensate Anthology. Accordingly, Anthology may, in addition to any other remedies available, seek injunctive or other equitable relief in response to any such breach.
D. Further Assurances. You agree to execute and deliver any documents or instruments, and take any further actions that are reasonably required, to provide the other party the full benefits and rights described in these Terms.
E. Assignment. You may not assign these Terms or delegate your performance without Anthology’s prior written consent, and any attempt to do so is void. Anthology may assign or transfer these Terms without your consent. These Terms are binding upon and inure to the benefit of the parties’ permitted successors and assigns.
F. Severability. If any provision of these Terms or portion of a provision is invalid, illegal, or unenforceable, the rest of these Terms will remain in effect.
G. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these Terms.
H. Entire Agreement. These Terms constitute the entire agreement and supersede any other agreement of the parties relating to their subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement these Terms.
I. Nature of Rights. The licenses granted under these Terms are rights in “intellectual property” within the scope of Section 101 (or its successors) of the United States Bankruptcy Code (the “Code”). Each party as licensee will have and may fully exercise all rights available to a licensee under the Code, including under Section 365(n) or its successors.
J. Relationship. Neither Anthology’s provision of the Apps to you, nor your access to and use of the Service, creates any direct business relationship between you and Anthology. You acknowledge and agree that these Terms are not an employment agreement, nor does it create an employment or contractor relationship, between you and Anthology; and no joint venture, partnership, or agency relationship exists between you and Anthology. You acknowledge and agree that Anthology will not owe you any financial compensation in connection with your use of the Service or provision of User-Provided Products and Services. You will not be entitled to any benefits paid or made available by Anthology to its employees. You have no authority to bind Anthology and you undertake not to hold yourself out as an employee, agent, or authorized representative of Anthology. As a User, YOU ACT EXCLUSIVELY ON YOUR OWN BEHALF AND FOR YOUR OWN BENEFIT, AND NOT ON BEHALF OF OR FOR THE BENEFIT OF ANTHOLOGY. YOU AGREE NOT TO DO ANYTHING TO CREATE A FALSE IMPRESSION THAT YOU ARE ENDORSED BY, PARTNERING WITH, OR ACTING ON BEHALF OF OR FOR THE BENEFIT OF ANTHOLOGY, INCLUDING BY INAPPROPRIATELY USING ANY ANTHOLOGY IP.
K. No Third-Party Beneficiaries. There are no third-party beneficiaries of these Terms, except as described in Section 23 (Notice Regarding Apple).
L. Notices. All notices under these Terms must be in writing, and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Either party may update its notice address by notice to the other party in accordance with this Section 21.L. All notices to Anthology will be sent to:
2786 Audrey Ter.,
Union, NJ 07083
M. Force Majeure. Anthology will not be liable for any delay or failure to perform under these Terms as a result of any cause or condition beyond Anthology’s reasonable control (a “Force Majeure Event”), so long as Anthology uses reasonable efforts to avoid or remove those causes of delay or non-performance. If a Force Majeure Event causes Anthology to delay or fail to perform its obligations under these Terms for 30 consecutive days, either party may terminate these Terms.
N. Interpretation. If Anthology provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail. Any heading, caption, or section title contained in these Terms is for convenience only, and does not define or explain any provision. Any use of the term “including” or variations thereof should be construed as if followed by the phrase “without limitation.”
22. NOTICE FOR CALIFORNIA USERS. Under California Civil Code Section 1789.3, Users located in California are entitled to the following notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
23. Official Rule for Hotspot Challenges - Anthology Photo Contests
A. Entry into a Hotspot Challenge on Anthology is free for any user of Anthology
B. To enter, you must first visit a nearby Hotspot that is indicated by a golden pin on the Explore page of Anthology
C. While at the Hotspot, you must read the contest description on the Hotspot’s Information Page which will include details about the category of photo that will be considered for the reward (eg: black and white photo, sepia photo, abstract photo, etc.)
D. Submit a photo that corresponds with the category mentioned in the Information Page to the Hotspot by tapping “Add to Anthology”
E. You will be notified if your photo submission is the winning submission of that Hotspot Challenge
24. Notice Regarding Apple. This Section 24 only applies to the extent you are using the Apps on an iOS device. You acknowledge that these Terms are between you and Anthology only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (A) product liability claims; (B) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (C) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
The Service hereby acknowledges that Apple is not a sponsor of Hotspot Challenges that may appear on the Service.