IMPORTANT-READ CAREFULLY: IF YOU DO NOT AGREE WITH THESE TERMS OF USE, DO NOT USE THIS SITE. THIS SITE USAGE AGREEMENT (THIS “AGREEMENT”) IS A LEGALLY BINDING AGREEMENT BETWEEN YOU, AN INDIVIDUAL OR THE LEGAL ENTITY ON WHOSE BEHALF YOU ENTER INTO THIS AGREEMENT TO USE THE SOFTWARE (“YOU” OR “YOUR”), AND The Gillery Inc.., A CALIFORNIA CORPORATION DOING BUSINESS AS Gallery Yoram Gil  (”GYG)  YOU AND GYG ARE SOMETIMES REFERRED TO HEREIN SINGULARLY AS A “PARTY” AND COLLECTIVELY AS “THE PARTIES.”  THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS FOR YOU TO USE GYG's  SOFTWARE (THE “SOFTWARE”), THE UNIFORM RESOURCE LOCATOR (INTERNET ADDRESS) USED BY GYG TO PROVIDE ACCESS TO THE SOFTWARE,  ANY SERVICE, TECHNICAL SUPPORT, HOSTING, OR ANY OTHER PRODUCT OFFERED BY imahges (SINGULARLY AND COLLECTIVELY, THE “SITE”). GYG ALLOWS YOU TO ACCESS THE SITE AND USE THE SOFTWARE ONLY UPON THE EXPRESS CONDITION THAT YOU ACCEPT EACH PROVISION OF THIS AGREEMENT.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING THE SITE OR USING THE SOFTWARE. BY CLICKING ON THE “I ACCEPT” BUTTON AT THE END OF THIS AGREEMENT, YOU ACCEPT EACH PROVISION OF THIS AGREEMENT.

1.            Account Information Security, Identity, and Data StorageYour password and login information are for Your use only. You shall keep Your account (“Account”) information confidential, including Your password, username, login and any other information related to Site or Software access (“Account Information”), and inform GYG promptly upon the unintended and/or undesired disclosure to any third party of any portion of such Account Information. You shall not permit or allow any other person or entity to have access to or to use Your Account Information, absent imahges' prior express written consent, and You shall at all times remain primarily responsible for all activity relating to Your Account Information. You shall log off from your Account at the end of each session on the Site or the Software. You agree that you will comply with any security processes and procedures (such as passwords) specified by GYG with respect to access to or use of the Site and the Software. Further, you agree not to access or attempt to access any areas of or through this Site that are not intended for general public access, unless you have been provided with express written authorization by imahges. You may not provide the Site, the Software, or any part thereof to third parties in any way, including sale, lease, sublicense, file transfer or through a networked or time-sharing environment.

Although GYG has taken significant measures to ensure the security of information submitted by You when using the Site and the Software, imahges cannot guarantee the security of information collected during Your use of the Site or the Software and shall not be liable in any way for compromise of Your data. Due to the substantial risks (including loss and corruption of data, delays, non-deliveries, misdeliveries and service interruptions) associated with the reception, manipulation, transmission, storage, and other uses of data over public networks such as those provided using the Software through the Site, You will take all necessary precautions to protect and insure against such risks.  Any and all dependence upon or use of data, information or other content whether human or machine-readable received or transmitted via the use of the Software through the Site is done solely and exclusively at Your own risk.

2.            License Grants.  By using either the Site or the Software, You may have access to certain software, content and/or other information, and other content owned or licensed by imahges, its suppliers, employees, licensors, representatives suppliers, merchant business associates, advertisers, directors, agents, consultants, mentors and/or other independent contractors (each, a “Contributor”). The Software and the information and software contained on the Site is proprietary to GYG and its Contributors and is protected under federal and state intellectual property laws and international treaty provisions. Subject to each provision of this Agreement, imahges hereby grants to You (and You accept) a non-exclusive, non-transferable limited license to access the Site and to use the Software solely during each session authorized by imahges.

All rights not expressly granted to You are hereby reserved by imahges and/or each respective Contributor. GYG and each Contributor shall have the right to assert and enforce each provision of this Section 2 directly on its own behalf. You shall abide by this Agreement, and any and all licensing agreements between a third party Contributor and You (collectively, the “Licensing Documents”). You assume full responsibility for anything You post or transmit to or through the Site, including all text comments, questions submitted during Q&A sessions, any suggestion, idea, graphic, question or other information submitted by You (singularly or collectively, “Submissions”). You shall only access the Site and use the Software solely to lawfully participate in GYG online gallery and You expressly agree not to access or use the Site or the Software in any way that violates this Agreement or any Licensing Documents.

3.            Proprietary Rights.  For the purposes of this Agreement, “Proprietary Rights” means any and all of the following: (a) rights associated with works of authorship throughout the Universe, including copyrights, moral rights, and mask works; (b) trademark and trade name rights and similar rights and all business goodwill associated therewith; (c) trade secret rights; (d) patents, designs, algorithms and other industrial property rights; (e) all other intellectual and industrial property rights (of every kind and nature throughout the universe, whether now known or hereafter created, and however designated, including logos, “rental” rights, rights of publicity, and rights to remuneration), whether arising by operation of law, contract, license, or otherwise; and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing).

3.1         GYG Ownership.  It is hereby understood and agreed that, as between GYG and You, imahges is the owner of any and all right, title and interest, including all Proprietary Rights, included or provided by imahges or any Contributor on or through the Site or the Software, including all characters, text, software, photographs, graphics, illustrations, artwork, video, music, sound recordings, names, logos, trademarks and service marks (singularly and collectively, the “Materials”). The Materials are protected by U.S. copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. You hereby warrant that neither any Submissions nor any work You upload or otherwise make available to or through the Site or Software does or will violate any Proprietary Rights of any third party. Except as expressly provided herein, You do not acquire any Proprietary Rights in or to the Materials or otherwise through use of the Site or the Software.

3.2         Express Prohibitions.  You specifically shall not: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code (i.e., the human-readable form of any computer programming code) (“Source Code”) of the Software, in whole or in part; (ii) create any derivative work based or incorporating any portion of the Software or the Site; (iii) download, republish, publicly display, reproduce, copy, post, transmit, or in any way distribute any material from the Software or the Site, unless such activities are in direct furtherance of Your permitted use of the Software and the Site and do not in any way violate this Agreement; (iv) rent, lease, assign or transfer all or any part of Your access to the Software nor Your Account Information to any person or entity without imahges' express prior written consent; (v) remove any proprietary notice, label, or mark on any component of the Software or the Site, whether in machine language or Source Code; (vi) use the Site to provide a service bureau by which the Site or the Software can be accessed by third parties or by which information produced pursuant to the Site or the Software is sold or given to third parties via pay per call or other similar arrangement; (vii) sublicense, assign, delegate or otherwise transfer this license or any of the related rights or obligations for any reason without GYG’s express prior written consent; or (viii) permit more than the total number of users authorized by GYG to either access or use the Software. Failure to comply with any of these restrictions will result in automatic termination of Your permission to access the Site and the Software and possible legal action against You.

3.3         Written Permission Required.  If You wish to use any Materials, You must obtain GYG’s express prior written consent, to be granted or withheld at GYG’s sole and absolute discretion, for You to use, display, reproduce, distribute, perform, or make any derivative work based on or incorporating any Materials.  Failure to comply with any of these restrictions will result in automatic termination of Your permission to access the Site and the Software and possible legal action against You.

4.            SITE PROHIBITIONS. 

4.1         Transmission of Harmful Content.  You shall use the Site and the Software for lawful and permitted purposes only. Transmission of any material in violation of any municipal, state, federal, foreign or other applicable regulation or law is prohibited. You shall not upload to, transmit or otherwise distribute through the Site any content that: (1) infringes any Proprietary Rights of any third party; (2) violates any law or regulation; (3) is defamatory or trade libelous; (4) is harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, intimidating, profane, pornographic, hateful, racially, ethnically or sexually discriminatory or otherwise objectionable in any way or that otherwise violates any right of another; (5) that encourages conduct that would violate any conduct prohibited by this Agreement; (6) restricts or inhibits any other user from using the Site or from purchasing any product or service sold by GYG or through any of its Contributors; (7) is or amounts to an unsolicited advertisement, promotion, or other form of solicitation; or (8) impersonates any person or entity whether through digital or manual signature or otherwise or that directly or indirectly attempts to gain unauthorized access to any portion of the Site any computer, software, or data of any person, organization or entity that uses or accesses the Site.

4.2         VirusesYou shall not knowingly or negligently transmit any information that contains viruses or other computer programming defects. Each computer You use to access the Site or the Software shall have updated anti-virus software protecting it.

4.3         SpammingYou shall not directly or indirectly use the Site or the Software for chain letters, junk mail, spamming or any use of distribution lists to any person who has not given specific permission to be included in such a process. "Spam" or "Spamming" means any attempt to use a mailing list for the purpose of sending to a person or persons an unsolicited message, including any advertisements.

5.            Content Screening.  You acknowledge that, although imahges may or may not screen Site content, imahges and its Contributors do have the right (though not the obligation) in their sole and absolute discretion to screen, refuse to post, reject, edit, remove or otherwise filter any Site content including any content that either GYG or any of its Contributors believe violates any term of this Agreement or is otherwise objectionable. You further acknowledge that neither imahges nor its Contributors control Site content available on the bulletin boards, chat rooms, forums, and other user and member generated pages and that any and all opinions, advice, statements, services, offers or other information or content presented or disseminated on any bulletin board, chat room or on any other user or member generated pages are those of their respective authors and neither GYG nor its Contributors shall in any way be liable therefor. You expressly agree that You must evaluate, and do bear all risks associated with, any and all Site content.

6.            Public Carrier.  You expressly agree that, for the purposes of this Agreement, GYG shall be treated as a public carrier and that GYG cannot and will not be responsible for any data or content of such data transmitted over its or any public network or stored on any servers or equipment that are used for the purpose of providing the Services, including Internet connectivity, web hosting, server collocation (if any), or dedicated web hosting.

7.            Prohibiting Site and Software Access, Complaints & Investigation.  GYG reserves the right to prohibit use of the Site, the Software, and/or the purchase of any product and/or service from the Site by any user who, in GYG sole and absolute discretion, violates any provision of this Agreement. Such prohibition may occur without notice to the user. If You believe a user is violating this Agreement, please contact us. GYG reserves the right to investigate any suspected violation of this Agreement and may gather information from the user(s) and/or complaining party, if any, and examine any material on the Site. In addition to imahges foregoing investigation rights, You hereby expressly also authorize GYG to cooperate with: (i) law enforcement authorities in the investigation of suspected criminal violations, and/or (ii) system administrators at other Internet service providers, network or computing facilities and/or any other third party in order to enforce this Agreement or comply with any applicable law. Such cooperation may include imahges providing Your username, IP address, or other identifying information.

8.            Third party Material.  The Site and the Software may contain references to third party products or services. The appearance of any third party product or service does not imply imahges endorsement of the product or service, or its provider. The Site may contain hyperlinks to other sites on the internet which are not owned or controlled by imahges. The appearance of any third party link on the Site does not imply imahges’ endorsement of the linked site, its sponsor, or any product or service offered on the linked site. GYG makes no representations and is not responsible for the quality, legality, decency, or any other aspect of the products, services or Web sites provided by third parties that may be referred to on the Site. Access or use of any linked site is done solely at Your own risk. GYG cannot and does not assume any responsibility for any material on any such site, or any other material outside of the Site, which is accessed directly or indirectly by any such hyperlink.

9.            Operation.  GYG reserves the absolute right at any time and for any reason to modify or discontinue any aspect or feature of the Site or the Software, including content or functionality.

10.         Equipment;  You are solely responsible for acquiring and maintaining all computer hardware and software, telephone, broadband or other similar high speed internet access and other equipment, and all communications and other services needed to access and use the Site and the Software.

11.         Indemnification.  You agree to, and shall, indemnify, defend, and hold harmless GYG and each of its Contributors, subsidiaries, divisions, officers, directors, employees, attorneys, and licensees from and against any claim, demand, damage, cost or other expense (including reasonable attorney fees) asserted by any third party due to, arising out of, or in any way related to, any violation by You of this Agreement or use of the Site or the Software by You or through use of Your Account Information.

12.         DISCLAIMER OF WARRANTIESNOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, THE SITE AND THE SOFTWARE IS FURNISHED “AS IS” AND WITH ALL FAULTS. GYG MAKES, AND YOU RECEIVE, NO EXPRESS, IMPLIED OR STATUTORY WARRANTIES, OR IN ANY COMMUNICATION WITH YOU OR OTHERWISE. imahges EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (INCLUDING THAT THE SITE, THE SOFTWARE, OR ANY PRODUCT OR SERVICE FROM GYG OR ANY OF ITS CONTRIBUTORS WILL MEET YOUR REQUIREMENT(S) OR EXPECTATION(S)), AVAILABILITY, SECURITY, TITLE AND NON-INFRINGEMENT, ANY WARRANTY THAT OPERATION OF THE SOFTWARE OR THE SITE WILL BE UNINTERRUPTED OR ERROR FREE, OR THE FAILURE TO PROVIDE ADEQUATE INSTRUCTION OR SUPPORT FOR THE SOFTWARE. GYG imahges SHALL NOT BE RESPONSIBLE FOR ANY THIRD PARTY’S UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY CUSTOMER TRANSMISSION(S) OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED USING THE SOFTWARE OR THROUGH THE SITE, ANY INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, DESTRUCTION, OR USE OF RECORD. imahges DOES NOT WARRANT THAT EITHER THE SOFTWARE OR THE SITE IS FREE OF INACCURACIES, ERRORS, BUGS, VIRUSES, HACKERS, INTERRUPTIONS, OR OTHER HARMFUL COMPONENTS OR PROGRAM LIMITATIONS. AS BETWEEN THE PARTIES, THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SITE AND SOFTWARE REMAINS WITH YOU AND YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY ANY OF THE FOREGOING, FOR ANY ACT OF GOD, INTERNET BLACKOUT (OR BROWNOUT), YOUR IMPROPER APPLICATION ARCHITECTURE OR IMPLEMENTATION, ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, OR ANY TRANSMISSION(S) ENTERED THROUGH THE SOFTWARE OR THE SITE. EXCEPT AS OTHERWISE EXPRESSLY AGREED BY GYG IN WRITING, GYG SHALL NOT BE OBLIGATED TO REPAIR OR OTHERWISE REMEDY ANY ERRORS OR SOFTWARE PROBLEMS ARISING FROM ANY OF THE FOREGOING. YOU ALSO AGREE THAT GYG IS NOT RESPONSIBLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY THIRD PARTY OR ANY INFRINGEMENT OF ANOTHER’S RIGHTS, INCLUDING PROPRIETARY RIGHTS.

13.         LIMITATION OF LIABILITY.  You expressly acknowledge the foregoing warranty disclaimers and further recognize that the operation and availability of the communications systems, including telephone service, computer networks and the Internet, used for accessing and interacting with the Site can be unpredictable and may, from time to time, interfere with or prevent access to or operation of the Site and the Software. You acknowledge that GYG is not responsible for any such interference with or prevention of Your use of or access to the Site or the Software. Likewise, neither imahges nor any of its Contributors shall be liable for any indirect, punitive, special, incidental, or consequential damages (including any damages for loss of equipment, opportunity, business, loss of data or profits or investment, or the like), in any way connected with the use or performance of the Site or the Software, with the delay or inability to use the Site or the Software, the provision of or failure to provide any instruction relating to the Site or the Software, or for any information, software, product, service and related graphics or documentation obtained through the Site, or otherwise arising out of the use of the Site or the Software, whether based on breach of contract, breach of warranty, tort (including negligence, product liability or otherwise), cost of cover, or any other pecuniary loss arising out of the use or inability to use the Site or the failure to provide support therefor, even if GYG or any of its Contributors have been advised of the possibility of such damages and even if a remedy set forth herein is found to have failed of its essential purpose. In any case, neither GYG s nor any of its Contributors shall be liable under this Agreement for more than five U.S. Dollars ($5 US). Because some states do not allow the exclusion or limitation of liability, the above limitation may not apply to You.

14.         Equitable Relief.  Notwithstanding any provision of this Agreement to the contrary, You acknowledge that, at the time this Agreement is entered, it would be impossible or inadequate to measure and calculate all of imahges’ damages for Your breach of certain provisions of this Agreement and that it would require a court of competent jurisdiction to ascertain GYG’s damages. Accordingly, if You breach or threaten to breach any of Your obligations, other than payment when due, imahges shall be entitled, without showing or proving any actual damage sustained, to a stipulated temporary restraining order, and shall thereafter be entitled to apply for a preliminary injunction, permanent injunction, and/or order compelling specific performance, to prevent the breach of Your obligations under this Agreement. Nothing in this Agreement shall be interpreted as prohibiting GYG  from pursuing or obtaining any other remedies as otherwise available to it for such actual or threatened breach, including recovery of damages.

15.         Termination.  GYG may immediately terminate this Agreement and Your Account upon (a) Your breach of any provision of this Agreement or (b) any action by You that GYG determines, in its sole judgment, to interfere with the operation or use of the Site or the Software.

15.1       SurvivalThis Agreement’s provisions pertaining to the protection of GYG’s and third party’s Proprietary Rights; each express and implied license grant from You; Your indemnification obligations; all disclaimers and limited liability provisions; Sections 16 through 22, inclusive; and each other provision that may reasonably be interpreted or construed as being reasonably expected or intended to survive this Agreement’s termination or expiration, shall survive such termination or expiration.

16.         Force MajeureNonperformance of either Party shall be excused to the extent and for so long as performance is rendered impossible by strike, fire, flood, earthquake, storms, or any act of nature, riot, explosion, insurrections, sabotage, epidemics, quarantine restrictions, labor disputes or shortages, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the nonperforming Party.

17.         Independent Contractor.  Each Party will be and act as an independent contractor to the other Party in its performance of its obligations pursuant to this Agreement. Neither Party will be entitled to, or will attempt to, create or assume any obligation, express or implied, on behalf of the other Party. This Agreement will not be interpreted or construed to create an association, joint venture, partnership, or franchise between the Parties or to impose any partnership obligation or similar liability arising therefrom upon either Party.

18.         Assignment.  This Agreement and/or the respective rights and obligations arising out of this Agreement shall not be assigned or transferred by You, or to or by any third party under any circumstances, including by court order, operation of law, statute, regulation, ordinance, or otherwise, without GYG’s prior express written consent. Any attempt to assign this Agreement by You shall be null and void and shall, at GYG’s sole option, be a basis for the immediate termination of this Agreement. Notwithstanding the foregoing, however, imahges may assign its rights, title and interests in this Agreement without Your consent (a) with, into or to a third party pursuant to any merger, consolidation, reorganization, business combination, share exchange or sale of substantially all of GYG’s assets; and/or (b) to a direct or indirect wholly owned subsidiary of GYG ; and/or (c) to any entity in which GYG owns a controlling interest. Subject to the foregoing restrictions on assignment, this Agreement is binding upon, inures to the benefit of, and is enforceable by the Parties and their respective successors and assigns.

 

19.         No Third Party Beneficiary.  This Agreement specifically is intended not to constitute a third party beneficiary contract and therefore shall not be construed to be for the benefit of any person or entity not a Party hereto, and no such person or entity shall have any claim or right of action under this Agreement.

20.         Severability / Waiver.  If any term of this Agreement is held by an arbitrator or a court of competent jurisdiction to be invalid or unenforceable, all of the remaining terms of this Agreement will remain in full force and effect as if such invalid or unenforceable term had never been included. No delay, omission, or failure to exercise any right or remedy provided for in this Agreement shall be deemed to be a waiver thereof or an acquiescence in the event giving rise to such remedy, but every such right or remedy may be exercised, from time to time, as may be deemed expedient by the Party exercising such right or remedy.

21.         Governing Law/ VenueThis Agreement and any dispute between the Parties relating to the Software or the Site shall be exclusively interpreted, construed and enforced in all respects in accordance with the laws of the State of California (U.S.A.) without reference to its choice of law rules and, if any federal right violation is alleged, the laws of the United States of America. No action brought by either Party against the other for breach of this Agreement will be limited to breach of contract and, unless otherwise expressly provided for in this Agreement, either Party may bring any cause(s) of action under state and/or federal law that would otherwise be available to it but for this Agreement. Venue for any court action arising out of or relating to this Agreement shall be exclusively brought in the appropriate state court in Alameda County, California, or in the United States District Court, Northern District of California, and the Parties irrevocably consent to the jurisdiction of such courts and waive any objection to such venue for any permitted court action on any obligation hereunder. If You are now or are later deemed to be a state entity, You hereby expressly and specifically waive any objection You may have, pursuant to the Eleventh Amendment to the United States Constitution or otherwise, to the jurisdiction of, or any award that could be granted by, the United States Federal Courts.

 22.        MiscellaneousThis Agreement: (i) is drafted and shall be interpreted in the English language; (ii) shall be construed fairly with no inference drawn against the drafting Party; (iii) uses, though strictly for convenience, various titles and headings which shall not affect this Agreement’s interpretation; (iv) sets forth the Parties’ entire agreement and understandings relating to the subject matter herein and merges and supersedes all of the Parties’ prior agreements, writings, commitments, discussions and understandings; (v) and any right or obligation set forth in this Agreement can only be amended, modified, or waived in a writing signed by imahges; (vii) shall control if any purchase order or other document that contains any term or condition that purports to govern use of the Software or the Site; and (viii) shall bind (and inure to the benefit of) the Parties, and the Parties’ respective heirs, approved assigns, successors-in-interest, and legal representatives (subject to any and all assignment restrictions set forth herein). When used in this Agreement, “including” shall be deemed to mean “including, but not limited to,” regardless whether such term is initially capitalized and notwithstanding any conflicting provision of this Agreement. YOU EXPRESSLY REPRESENT THAT YOU HAVE: (A) READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO ALL OF ITS TERMS AND CONDITIONS; (B) INDEPENDENTLY EVALUATED THE DESIRABILITY OF ENTERING INTO THIS AGREEMENT AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH HEREIN; AND (C) BEEN AFFORDED THE OPPORTUNITY TO SEEK THE ADVICE OF LEGAL COUNSEL WITH REGARDS TO YOUR RIGHTS AND OBLIGATIONS SET FORTH IN THIS AGREEMENT AND HAVE EITHER SOUGHT OR REFUSED SUCH COUNSEL.