Terms of Service


Effective: June 11, 2019

Welcome to Foto!

Thank you for signing up to use our products, including the Foto communications and content sharing mobile application and website (the “Foto Platform”), and services (together, we’ll call these the “Services”). The term “you” refers to the person or entity accessing or otherwise using our Services.

These Terms of Service Agreement (or “Terms” for short) describes the rules of Foto’s relationship with you and apply to your use of the Foto Platform application or Foto website at website (the “Site”) and the services, features, content, applications and widgets offered on the Foto application or website. It is a legal agreement, so please read it carefully.

By registering for and/or using the Service in any manner, including but not limited to by providing your phone number, name, user name and profile photo, you agree to all of the terms and conditions contained herein (“Terms of Use”), which also incorporate Foto’s Privacy Policy and all other operating rules, policies and procedures that may be published from time to time on the Foto Platform by Foto, each of which is incorporated by reference and each of which may be updated by Foto from time to time without notice to you in accordance with the terms set out under the "Updates to These Terms" section below. In addition, some services offered through the Service may be subject to additional terms and conditions specified by Foto from time to time; your use of such services is subject to those additional terms and conditions, which are incorporated into these Terms of Use by this reference. These Terms of Use apply to all users of the Service, including, without limitation, users who are contributors of content, information, and other materials or services on the Site, individual users of the Service, venues that access the Service, and users that have a page on the Service. IF YOU DO NOT AGREE WITH THESE TERMS, PLEASE DO NOT USE THESE SERVICES.

1. Who Can Use the Foto Platform.

You may browse the Site and view content without registering, but as a condition to using certain aspects of the Service, you are required to register with Foto and represent, warrant and covenant that you provide Foto with accurate and complete registration information (including, but not limited to a user name (“User Name”), e-mail address and/or mobile telephone number, profile name, picture and a password you will use to access the Service) and to keep your registration information accurate and up-to-date. Failure to do so shall constitute a breach of these Terms of Use, which may result in immediate termination of your Foto account. We recommend, but do not require, that you use your own name as your User Name so your friends can recognize you more easily.

Foto will have the right to use your registration information in connection with servicing and operating the Foto Platform. You agree (i) to restrict access by any other person or entity to your password or other login information, (ii) to not knowingly use the name or email of any other person without authorization, (iii) to not use an email or profile name that is profane, offensive or otherwise inappropriate, (iv) to not allow any third party to use your login information, registration information or User account, and (v) to notify Foto of any breach of security by promptly sending Company an e-mail to support@foto.com. You agree that you will be liable for all activities that occur under your User account, even if such activities were not committed by you. Foto is not responsible for any loss or damage as a result of someone else using your User account, registration information or password with or without your knowledge. You acknowledge and agree that certain User account information (such as your account profile name and/or picture) that you provide in connection with the registration of your account will be publicly viewable by all Users of the Platform.

We want our Service to be as open and inclusive as possible, but we also want it to be safe, secure, and in accordance with the law. So, we need you to commit to a few restrictions in order to be part of the Foto community.

First, you must be at least 13 years old. If you are not yet legally considered an adult where you live (known as the age of majority), you may only use the Services if your parent or guardian agrees to these Terms on your behalf.

In addition, you must not be prohibited from receiving any aspect of our Service under applicable laws or engaging in payments related Services if you are on an applicable denied party listing. For example, you must not be a convicted sex offender.

Finally, we must not have previously disabled your account for violation of law or any of our policies.

2. Your Rights to Use the Services.

As between any User and Foto, Foto retains all right, title and interest in and to the Foto Platform, throughout the world, in perpetuity, including, without limitation, (i) all text, graphics, typefaces, formatting, graphs, designs, editorial content, HTML, look and feel, software, and data, (ii) all business processes, procedures, methods, and techniques used in the Foto Platform, (iii) all other materials and content uploaded or incorporated into the Foto Platform, including, without limitation, all Platform content (but excluding User Content, which is owned by the applicable User subject to the User Content License granted to Foto pursuant to these Terms), (iv) all associated trade secret rights and other intellectual property and proprietary rights recognized anywhere in the world; and (v) the coordination, selection, arrangement and enhancement of such Platform IP as a Collective Work under the United States Copyright Act, as amended (collectively, “Foto Platform IP”), and nothing contained herein shall be construed as creating or granting to any User any right, title or interest in and to such Foto Platform IP other than the express license granted therein pursuant to these Terms of Service. Foto Platform IP is protected in all forms, media and technologies now known or hereinafter developed as well as by the domestic and international laws of copyright, trademarks, patents, and other proprietary rights and laws.

You acknowledge and agree that we may generate revenues, increase goodwill or otherwise increase our value from your use of the Services, including, by way of example and not limitation, through the sale of advertising, sponsorships, promotions and usage data, and except as specifically permitted by us in these Terms of Service or in another agreement you enter into with us, you will have no right to share in any such revenue, goodwill or value whatsoever. You further acknowledge that, except as specifically permitted by us in these Terms of Service or in another agreement you enter into with us, you (i) have no right to receive any income or other consideration from any User Content (defined below) or your use of any musical works, sound recordings or audiovisual clips made available to you on or through the Services, including in any User Content created by you, and (ii) are prohibited from exercising any rights to monetize or obtain consideration from any User Content within the Services or on any third party service ( e.g. , you cannot claim User Content that has been uploaded to a social media platform such as YouTube for monetization).

Subject to your compliance with these Terms of Service, and any other policies we make available to you from time to time, Foto grants you a personal, worldwide, royalty-free, non- transferable, non-exclusive, revocable, non-sublicensable license to: (a) access and use the Services for your non-commercial use or internal business use, solely as permitted by the tools, products, services, functionalities and/or features of the Foto Platform, subject in all respects to these Terms, and not for redistribution of any kind; (b) download, install and use the Foto Platform application on one or more mobile device(s) (e.g. cell phone or tablet), which natively executes an operating system supported by Foto, and that you own or control for your non- commercial use or internal business use; and (c) use products or services offered within the Foto Platform application or website.

You agree that any software that we provide you, including the Foto Platform application, may automatically download and install upgrades, updates or other new features and regularly send log information to our servers. You may be able to adjust these automatic downloads through your mobile device settings. These updates and upgrades are designed to improve and enhance our Services and can include bug fixes, enhancements and new modules. You consent to the installation of such software, including updates and upgrades (and authorize us to deliver such software to you) as part of your use of our Services. You may withdraw consent by ceasing to use the Services.

You may not sell, rent, lease, assign, distribute, copy, modify or host any part of our Services. As well, you may not adapt, merge, make adaptations, translations or derivative works of, disassemble, decompile, reverse compile, attempt to discover the source code or reverse engineer any part of the Services, except to the extent these restrictions are expressly prohibited by applicable law.

3. Rights You Give Us.

As part of our agreement, you also give us permissions that we need to provide the Service. For instance, you agree that we can download and install updates to the Service on your device.

We do not claim ownership of your content, but you grant us a license to use it.

Some of our Services assist you with creating, uploading, posting, sending, receiving and storing images (such as your profile photo) (“User Content”).

Nothing is changing about your rights in your content. We do not claim ownership of your content that you post on or through the Service.

Instead, when you share, post, or upload content that is covered by intellectual property rights (like photos) on or in connection with our Service, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, adapt, modify, run, copy, publicly perform or display, publish, translate, and create derivative works of your content (consistent with your privacy and application settings). and to authorize other users of the Services and other third-parties to view, access, use, download, adapt, modify, adapt, reproduce, make derivative works of, publish and/or transmit your User Content in any format and on any platform, either now known or hereinafter invented. You further grant us a royalty-free license to use your user name, image, voice, and likeness to identify you as the source of any of your User Content; provided, however, that your ability to provide an image, voice, and likeness may be subject to limitations due to age restrictions.

For the avoidance of doubt, the rights granted in the preceding paragraphs of this paragraph include, but are not limited to, the right to reproduce sound recordings (and make mechanical reproductions of the musical works embodied in such sound recordings), and publicly perform and communicate to the public sound recordings (and the musical works embodied therein), all on a royalty-free basis. This means that you are granting us the right to use your User Content without the obligation to pay royalties to any third party, including, but not limited to, a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a performing rights organization (a “PRO”), a sound recording PRO, any unions or guilds, and engineers, producers or other royalty participants involved in the creation of User Content.

You can end these licenses anytime by deleting your content or account. However, content will continue to appear if you shared it with others and they have not deleted it. Furthermore, you grant us a non-exclusive, royalty-free and fully paid, irrevocable, worldwide license, with the right to grant sublicenses, to: (1) generate anonymized or de-identified information (“Aggregated Statistical Information”); and (2) using your User Content as described in the Privacy Policy.

Through-To-The-Audience Rights.

All of the rights you grant in your User Content in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of third party services will not have any separate liability to you or any other third party for User Content posted or used on such third party service via the Services.

Waiver of Rights to User Content.

By posting User Content to or through the Services, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you post to or through the Services.

To learn more about how we use information, and how to control or delete your content, review the Privacy Policy at foto.cam/privacy. You also represent and warrant that you have all necessary rights to perform the foregoing activities in respect of the User Content (including in respect of User Content that contains personal information), having provided all notices and disclosures, obtained all applicable consents and permissions, or otherwise have all authority, in each case as required by applicable laws, to enable us to perform the Services. If you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you must not post such sound recordings to the Foto Platform unless you have all permissions, clearances from, or are authorised by, the owner of any part of the content to submit it to the Foto Platform.

Permission to use your username and profile picture with accounts, ads, and sponsored content.

You give us permission to show your username, profile picture, and information about your actions (such as comments on other users photos) next to or in connection with accounts, ads, offers, and other sponsored content that you follow or engage with that are displayed on Foto products, without any compensation to you. As with actions on other content and follows of other accounts, actions on sponsored content and follows of sponsored accounts can be seen only by people who have permission to see that content or follow. We will also respect your ad settings. You can learn more about your ad settings in your user account.

While we aren’t required to, we may review, screen and delete your User Content at any time if we think it may violate these Terms. You are responsible for the User Content that you send through the Services, including for back up of such content.

If you select a username or similar identifier for your account, we may change it if we believe it is appropriate or necessary (for example, if it infringes someone's intellectual property or impersonates another user).

We’re always happy to hear from you but if you volunteer any feedback or suggestions about Foto or the Services, you agree that you will not submit to us any feedback or suggestions that you consider to be confidential or proprietary and that we can use your feedback and suggestions in any manner we deem is appropriate without compensating you.

You acknowledge and agree that Foto may establish general practices and limits concerning use of the Foto Platform, including without limitation the maximum number of days that User Content posted to the Foto Platform will be retained by, or made available through, the Foto Platform, and the maximum storage space that will be allotted on Foto’s servers on your behalf. You agree that Foto has no responsibility or liability for the blocking, deletion or failure to store any User Content maintained or transmitted by the Foto Platform. You further acknowledge that Foto reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice to you.

4. Privacy

Your privacy matters to us. You can learn more about how we handle your information when you use our Services by reading our Privacy Policy at foto.cam/privacy. We encourage you to read it carefully because by using our Services you agree that Foto can collect, use and share your information in the ways described in that policy.

5. Safety and Respecting the Rights of Others

Providing a safe and open Service for a broad community requires that we all do our part. Accordingly, when using the Services, you agree to the following:

● You can't impersonate others or provide inaccurate information. You must provide us with accurate and up to date information (including registration information). Also, you may not impersonate someone you aren't, and you can't create an account for someone else unless you have their express permission.

● You can't do anything unlawful, misleading, or fraudulent or for an illegal or unauthorized purpose.

● You can't violate (or help or encourage others to violate) these Terms or our policies. Learn how to report conduct or content in our help center.

● You can't do anything to interfere with or impair the intended operation of the Service.

● You can't attempt to create accounts or access or collect information in unauthorized ways.This includes creating accounts or collecting information in an automated way without our express permission.

● You can't attempt to buy, sell, or transfer any aspect of your account (including your username) or solicit, collect, or use login credentials or badges of other users.

● You can't post private or confidential information or do anything that violates someone else's rights, including intellectual property. Learn more, including how to report content that you think infringes your intellectual property rights, at clause 9 of these Terms.

● You can't use a domain name or URL in your username without our prior written consent.

● You can’t decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service (including without limitation any application or widget), except to the limited extent applicable laws specifically prohibit such restriction.

Without limitation to the foregoing, you may not upload, post, send, comment on or store content that:

● violates or infringes any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;

● promotes an illegal activity or that impersonates any other person or entity, including Foto;

● is bullying, harassing, abusive, threatening, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual;

● is harmful to minors in any way or targeted at persons under the age of 13 (or such other age as determined by us at our sole discretion, taking into account factors such as the jurisdiction in which you are a resident);

● spams or solicits Foto users to purchase anything;

● requests any form of identification or illegal content from Foto users; or

● interferes with the positive experience of other users of the Foto Platform, in Foto’s discretion.

You agree not to use the Services to:

● upload or distribute any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;

● collect information or data regarding other users, including email addresses or usernames, without their consent (e.g. using harvesting bots, robots, spiders, or scrapers);

● disable, overly burden, impair, or otherwise interfere with servers or networks connected to the Services (e.g. a denial of service attack);

● attempt to gain unauthorized access to the Services or servers or networks connected to the Services (e.g. through password mining); or

● interfere with another user’s use and enjoyment of the Services.

The Foto Platform enables Users to communicate and interact with other Users, including, without limitation, by liking, viewing, sharing, commenting on, and/or creating memes for, other Users’ User Content, and may in the future enable additional User interaction features such as direct messaging between Users. You are solely responsible for all of your interactions with the Foto Platform and other Users/User Content on or through the Foto Platform. In your interactions with other Users/User Content, you agree to conduct yourself professionally, civilly and respectfully at all times. You acknowledge and agree that in using the Foto Platform, Foto will not be responsible for the actions of any Users with respect to any other User or User Content, and that Foto does not actively monitor or police the specific interactions between Users of the Platform and other Users or User Content (and has no obligation to do so). You hereby release, disclaim and hold Foto harmless from and against any and all liability resulting from a User’s interaction with, or conduct towards, any other User or User Content (whether online or offline). Notwithstanding the foregoing, Foto reserves the right to determine, in its sole discretion, what constitutes harassment, mischief, or unacceptable conduct with or towards other Users or User Content, and where that has occurred, and may in its sole discretion, partially or completely deny, suspend or terminate access to the Foto Platform to any User that it determines has engaged in such behavior.

6. Your Account

You are responsible for anything that happens in your account, so please keep it secure. Keeping a strong password that you haven’t used for other accounts is one good way to do this. You agree that the registration information you give to Foto is true and that you’ll keep it up to date.

Also, you agree that you will not:

● create another account if we’ve disabled one you had unless you have our written permission first;

● buy, sell, rent or lease access to your Foto account or username unless you have our written permission first;

● share your account password with anyone;

● log in or try to log in to access the Services through unauthorized third party applications or clients.

If you think someone has gained access to your account, please contact our Trust & Safety team at team@Foto.com.

If you no longer want to use our Services again, and would like your account deleted, we can take care of this for you. Please contact us via team@foto.com, and we will provide you with further assistance and guide you through the process. Once you choose to delete your account, you will not be able to reactivate your account or retrieve any of the User Content or information you have added.

7. Data Charges

You are responsible for any mobile charges when you use the Services including data charges for use or the Services and/or updates or upgrades of new versions of the Services. If you’re not sure what those charges may be, please ask your provider before using the Services.

8. Ownership

We, or our affiliates and licensors as applicable, retain all ownership and intellectual property rights in and to: (1) the Services; (2) all Aggregated Statistical Information; and (3) all modifications, improvements, customizations, updates, enhancements, derivative works, translations and adaptations to the foregoing.

9. Copyright

Our policy allows copyright owners to request removal of any infringing materials and for the termination, in appropriate circumstances, of users of our Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is using Foto to unlawfully infringe the copyright(s) in a work, and want to have the material removed, please provide the following information in writing to 9 Count Inc. Attn: Copyright Takedown Request, 5482 Wilshire Blvd. #120 Los Angeles, CA 90036, Email: team@foto.cam.

10. Third Party Services

If you use a service, feature or product offered by a third party (including those we jointly offer with a third party), such as linking to a song from your Apple Music account to serve as the preview for your profile or linking to Snapchat for BitMoji to use as your profile picture (all together the “Third Party Services”), that third party's terms will govern their relationship with you. Please read and understand those terms and investigate any features that are important to you before using a Third Party Service. Foto is not responsible or liable for the third party terms or content on Third Party Services or actions taken under the third party's terms. Foto does not necessarily conduct a detailed review of and makes no promises about the Third Party Services.

11. Modifying the Services and Termination

We are always improving our Services and creating new ones. We may add or remove features, products or functionality, and we may also suspend or stop the Services at any time without notice.

We can also terminate this Agreement or deactivate your Foto account or any group you have created or participated in at any time if we think you’ve violated these Terms or for any reason. We may also reclaim usernames if you’ve been inactive for at least 3 months or have violated these Terms, including by infringing other people’s trademarks.

We can remove any content or information you share on the Service if we believe that it violates these Terms of Use, our policies or we are permitted or required to do so by law, or in response to complaints from other users or third parties, with or without notice and without any liability to you. We have the right to remove, disallow, block or delete any posting you make on our Services if, in our opinion, your post does not comply with the content standards set out in these Terms of Service. We can refuse to provide or stop providing all or part of the Service to you (including terminating or disabling your account) immediately to protect our community or services, or if you create risk or legal exposure for us, violate these Terms of Use or our policies, if you repeatedly infringe other people's intellectual property rights, or where we are permitted or required to do so by law. As a result, we recommend that you save copies of any User Content that you post to the Services on your personal device(s) in the event that you want to ensure that you have permanent access to copies of such User Content. We do not guarantee the accuracy, integrity, appropriateness or quality of any User Content, and under no circumstances will we be liable in any way for any User Content. If you believe your account has been terminated in error, or you want to disable or permanently delete your account, consult our help center.

Content you delete may persist for a limited period of time in backup copies and will still be visible where others have shared it. This paragraph, and the section below called "How We Handle Disputes," will still apply even after your account is terminated or deleted.

We will not be liable to you for terminating this Agreement, including for termination of your Foto account or deletion of your content. No matter who ends this agreement, you and Foto will continue to be bound by Sections 3 (Rights You Give to Us), 4 (Privacy), 5 (Safety and Respecting the Rights of Others), 8 (Ownership), 9 (Copyright), 10 (Third Party Services), 11 (Modifying the Services and Termination), 12 (Additional Terms for Specific Services),13 (Who is Responsible if Something Happens), 14 (How We Handle Disputes), 15 (Severability), 16 (Final Terms) and 17 (Updating These Terms).

12. Additional Terms for Specific Services

Since we have a growing number of Services, we sometimes need to describe additional terms for specific Services. Those additional terms and conditions, which are available with the relevant Services, then become part of your agreement with us if you use those Services. For additional information on how our Services work, you can visit our Help site located at foto.cam.

13. Who Is Responsible if Something Happens.

Our Service is provided "as is," and we can't guarantee it will be safe and secure or will work perfectly all the time. TO THE EXTENT PERMITTED BY LAW, WE ALSO DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

We also don’t control what people and others do or say, and we aren’t responsible for their (or your) actions or conduct (whether online or offline) or content (including unlawful or objectionable content). We also aren’t responsible for services and features offered by other people or companies, even if you access them through our Service, as noted above under “Third Party Services”.

Our responsibility for anything that happens on the Service (also called "liability") is limited as much as the law will allow. If there is an issue with our Service, we can't know what all the possible impacts might be. You agree that we won't be responsible ("liable") for any lost profits, revenues, information, or data, or consequential, special, indirect, exemplary, punitive, or incidental damages arising out of or related to these Terms, even if we know they are possible. This includes when we delete your content, information, or account. Our aggregate liability arising out of or relating to these Terms will not exceed the greater of $100 or the amount you have paid us in the past twelve months.

You agree to defend (at our request), indemnify and hold us harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney's fees and costs, arising out of or in any way connected with these Terms or your use of the Service. You will cooperate as required by us in the defense of any claim. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without our prior written consent.

14. How we Handle Disputes

Except as provided below, you and we agree that any cause of action, legal claim, or dispute between you and us arising out of or related to these Terms or Foto ("claim(s)") must be resolved by arbitration on an individual basis. Class actions and class arbitrations are not permitted; you and we may bring a claim only on your own behalf and cannot seek relief that would affect other Foto users. If there is a final judicial determination that any particular claim (or a request for particular relief) cannot be arbitrated in accordance with this provision's limitations, then only that claim (or only that request for relief) may be brought in court. All other claims (or requests for relief) remain subject to this provision.

Instead of using arbitration, you or we can bring claims in your local "small claims" court, if the rules of that court will allow it. If you don't bring your claims in small claims court (or if you or we appeal a small claims court judgment to a court of general jurisdiction), then the claims must be resolved by binding, individual arbitration. The American Arbitration Association will administer all arbitrations under its Consumer Arbitration Rules. You and we expressly waive a trial by jury.

The following claims don't have to be arbitrated and may be brought in court: disputes related to intellectual property (like copyrights and trademarks), or efforts to interfere with the Service or engage with the Service in unauthorized ways (for example, automated ways). In addition, issues relating to the scope and enforceability of the arbitration provision are for a court to decide.

This arbitration provision is governed by the Federal Arbitration Act.

You can opt out of this provision within 30 days of the date that you agreed to these Terms. To opt out, you must send your name, residence address, username, email address or phone number you use for your Foto account, and a clear statement that you want to opt out of this arbitration agreement, and you must send them here: 9 Count Inc. Attn: Foto Arbitration Opt-out, 5482 Wilshire Blvd. #120 Los Angeles, CA 90036

Before you commence arbitration of a claim, you must provide us with a written Notice of Dispute that includes your name, residence address, username, email address or phone number you use for your Foto account, a detailed description of the dispute, and the relief you seek. Any Notice of Dispute you send to us should be mailed to 9 Count Inc., ATTN: Foto Arbitration Filing, 5482 Wilshire Blvd. #120 Los Angeles, CA 90036. Before we commence arbitration, we will send you a Notice of Dispute to the email address you use with your Foto account, or other appropriate means. If we are unable to resolve a dispute within thirty (30) days after the Notice of Dispute is received, you or we may commence arbitration.

We will pay all arbitration filing fees, administration and hearing costs, and arbitrator fees for any arbitration we bring or if your claims seek less than $75,000 and you timely provided us with a Notice of Dispute. For all other claims, the costs and fees of arbitration shall be allocated in accordance with the arbitration provider's rules, including rules regarding frivolous or improper claims.

For any claim that is not arbitrated or resolved in small claims court, you agree that it will be resolved exclusively in the U.S. District Court for the Central District of California or a state court located in Los Angeles County. You also agree to submit to the personal jurisdiction of either of these courts for the purpose of litigating any such claim.

The laws of the State of California, to the extent not preempted by or inconsistent with federal law, will govern these Terms and any claim, without regard to conflict of law provisions.

15. Severability

If any part of these Terms is found to be invalid, illegal or unenforceable for any reason, then that provision will be severed from these Terms to the minimum extent such that the remaining provisions of these Terms will continue in full force and effect.

16. Final Terms

All rights not granted to you are reserved by Foto and all intellectual property in the Services is owned or licensed by us.

These Terms are the final, complete and exclusive agreement between you and 9 Count Inc. and supersede all prior agreements between us. Except where prohibited by applicable law, we reserve the right to change these Terms at any time without notice. Your continued access to and use of the Services after changes to these Terms indicates your acceptance of such changes. It is your responsibility to review these Terms regularly

If we don’t enforce a part of these Terms, it will not be considered a waiver. You can’t transfer your rights or obligations under this agreement without our consent. The word “including” means including without limitation. We may assign these Terms in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or bankruptcy or other operation of law, without your consent.

If we need to contact you about these Terms, you: (1) agree to receive electronic messages from us; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other messages we send to you electronically satisfy all legal requirements as if they were in writing. We agree that these Terms and all related documents are in English.

17. Updates to These Terms

We may change our Service and policies, and we may need to make changes to these Terms so that they accurately reflect our Service and policies. Unless otherwise required by law, we will notify you (for example, through our Service) before we make changes to these Terms and give you an opportunity to review them before they go into effect. Then, if you continue to use the Service, you will be bound by the updated Terms. If you do not want to agree to these or any updated Terms, you can delete your account, here.

17. Apple App Store Additional License Terms

If the Foto Platform application is provided to you through the Apple Inc. (Apple Inc. together with all of its affiliates, “Apple”) App Store, the following terms and conditions apply to you in addition to all the other terms and conditions of these Terms:

(1) The parties acknowledge these Terms are concluded between the parties, and not with Apple. The responsibility for the Foto Platform application and content thereof is governed by these Terms.

(2) Notwithstanding anything to the contrary hereunder, you may use the Foto Platform application only on an iPhone or iPod Touch that you own or control.

(3) You and we acknowledge that Apple has no obligation to furnish any maintenance or support services with respect to the Foto Platform application.

(4) In the event of any failure of the Foto Platform application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Foto Platform application (if any) to you. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Foto Platform application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by these Terms.

(5) Any claim in connection with the Foto Platform application related to product liability, a failure to conform to applicable legal or regulatory requirements, or claims under consumer protection or similar legislation is governed by these Terms, and Apple is not responsible for such claim.

(6) Any third party claim that the Foto Platform application or your possession and use of the Foto Platform application infringes that third party’s intellectual property rights will be governed by these Terms, and Apple will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim.

(7) You represent and warrant that you are not: (i) located in any 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; or (ii) listed on any U.S. Government list of prohibited or restricted parties.

(8) Apple is a third party beneficiary to these Terms and may enforce these Terms against you.

(9) If any of the terms and conditions in these Terms are inconsistent or in conflict with Apple’s applicable instructions for Minimum Terms for Developer’s End User License Agreement (the current version as of the date these Terms was last updated is located at: http://www.apple.com/legal/internet-services/itunes/appstore/dev/minterms/) or the App Store Terms of Service (the current version as of the date these Terms was last updated is located at: http://www.apple.com/legal/internet-services/itunes/ca/terms.html), the terms and conditions of Apple’s instructions for Minimum Terms for Developer’s End User License Agreement or App Store Terms of Service, as applicable, will apply to the extent of such inconsistency or conflict.

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