Terms of Service

Last updated December 27, 2010

Subject to Swiss Data Group's acceptance of your registration and your compliance with the Agreement, Swiss Data Group will provide you with the following Service: long-term offsite image archiving and management as well as associated ancillary services such as album creation, printing and sharing and the same as may be updated from time to time. In your use of the Service, you are responsible for providing the following (i) all equipment, such as a computer and modem, necessary to access the Internet; (ii) connectivity to the Internet; and (iii) payment of all fees associated with such access.

You are solely responsible for the content of all files you store or retrieve from, or attempt to store or retrieve from, your account and for all transmissions by you from and to your account. Your use of the Service is subject to all applicable laws and regulations. Your use of the Service is subject to the following restrictions and conditions. The Service may not be used:

(a) for any illegal purposes;
(b) to store, retrieve, transmit or view any file or image that contains illegal, pornographic, obscene or otherwise objectionable or offensive material of any kind or nature.
(c) to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law or regulation;
(d) to store, retrieve or transmit any material that violates the intellectual property rights of others; or
(e) to transmit any viruses, worms, "Trojan horses" or any other similarly contaminating or destructive features.

You also agree to (i) comply with all regulations, policies and procedures of networks through which you access and use the Service; and (ii) not access or attempt to access any Service account for which you do not have proper authorization. If you are not a professional photographer and/or are using the service for private use, you further agree to restrict your use of the Service for personal and entertainment purposes only. If you are a professional photographer using the Service for commercial purposes, you further agree to restrict your use of the Service for the dissemination or publication of digital content which is your own intellectual property.

All information you provide to Swiss Data Group when you register for the Service must be accurate and truly representative of your identity. You agree to promptly notify Swiss Data Group of any change in the information you provide on your registration form for the Service (the "Registration Information"). Swiss Data Group's policy regarding the privacy and use of the Registration Information is set forth in Swiss Data Group's Privacy Policy.

When you open a paid account with Swiss Data Group's long-term photo archiving and retrieval service, you will authorize a small charge to your credit card to purchase a balance of storage space. Whenever you upload photos to your account, we will deduct storage space from your balance equal to the total aggregate size of the files you uploaded, rounded up to the nearest megabyte (1 MB). You also agree that if you enable the Auto-Recharge feature on your My Profile page, then whenever your credit balance falls below the amount stated in the description of the Auto-Recharge feature, you authorize a charge to your credit card to increase your credit balance as indicated in the description of the Auto-Recharge feature. If we grant you storage space as part of a promotional campaign, any data uploaded by expenditure of this storage space will be treated as fully paid with all the benefits that accrue thereto.

Storage space is valid for a period of 12 months from the date of purchase. Any storage space that remains unused after 12 months will expire. When we deduct storage space from your balance in exchange for use of the Service, we always deduct the oldest valid storage space first. If we grant you storage space as part of a promotional campaign, that storage space expires either by the date indicated in the promotion or 12 months after it has been added to your balance. The foregoing notwithstanding, special rules may apply where explicitly indicated by published offer or separate contract between you and Swiss Data Group.

You will receive a confirmation email confirming every upload you make, identifying the pictures uploaded and the resultant costs as well as the remaining balance of storage space in your account. All terms of this agreement that refer to Stored Photos are only applicable to uploaded pictures for which you have received an upload confirmation email.

An IP address is a number that is automatically assigned to your computer whenever you are connected to the Internet. Swiss Data Group may collect IP addresses for the purposes of system administration, to audit the use of our Service, and to help to improve the user experience. We can and will provide the appropriate authorities with relevant IP addresses to respond to law enforcement requests, and we may also internally use IP addresses to track certain actions and to correlate those actions to the operating account. By using the Service, you consent to the transfer of your IP address outside of your jurisdiction of residence to Swiss Data Group.

As soon as this Agreement and your registration have been accepted by Swiss Data Group, you will be able to activate and use your account. You are solely responsible for any consequences arising out of your failure to maintain the confidentiality of your password. You will notify Swiss Data Group of any unauthorized use or other breach in the security of your account immediately after you learn of the same.

Swiss Data Group has teamed with Swisscom IT Services to provide security for your stored photos and Swiss Data Group will endeavor to restrict access to your account to persons accessing through use of your password. However, it may be necessary for us to access your account for support requirements. It may also be necessary for us to access your account to verify that the account is not being misused, particularly in the event of a complaint of violation of digital copyright laws or violation of Section 2 of this Agreement. In any case, only Swiss Data Group employees and agents are given access to the information on a need-to-know basis. All of Swiss Data Group's employees and agents are bound by state-of-the-art confidentiality agreements.

You are solely responsible for (a) obtaining sufficient rights to the content of the photos you store on Swiss Data Group's servers, and (b) ensuring that the photos do not violate the terms of Section 2 above. Swiss Data Group will not, as a matter of course, review, inspect, edit or monitor any stored photos through human intervention. Swiss Data Group reserves the right to examine the content of your account in the event that Swiss Data Group has a reasonable belief that an account is being used for the storage and/or distribution of any illegal content, including copyrighted materials, and in any such cases, Swiss Data Group reserves the right to refuse, remove, or disable access to any photos stored on Swiss Data Group's servers and delete any such pictures at any time without advance notice to you.

All pictures which have been uploaded to your account and confirmed by the appropriate email communication as described in paragraph 4 above are subject to our Guarantee. We guarantee that every picture you upload to your account at Swiss Data Group will be stored securely and will be accessible to you within a reasonable timeframe for the term indicated in the Service plan you selected for that picture. (Please note that for purposes of this Guarantee, although we will make every effort to provide you with constant online access to all of your photos, "reasonable timeframe" shall be judged in the context of the current status of our hardware infrastructure. Our data archiving system is rated for a minimum 98% uptime. However, because it is designed to withstand stresses beyond the capabilities of standard data storage systems, there may be instances where our system must recover from serious disruptions; in such cases, this can involve efforts such as retrieving data from our tape backups, which can take a matter of weeks.)

We further commit that within 45 days from the date of confirmed upload we shall transfer to the Foundation for Data Permanence a cash amount for each picture you have uploaded to your account since the last such cash transfer. The cash amount transferred shall be the amount that we estimate, in combination with investment earnings thereupon, to be necessary to pay the costs of storing that photo for 99 years. The Foundation for Data Permanence will then pay out the periodic storage costs for all the pictures subject to this Guarantee to Swiss Data Group as they come due. Should Swiss Data Group ever be unable to provide the services required by this Guarantee, the Foundation for Data Permanence shall undertake to find a suitable replacement in a reasonable timeframe so that your photos remain accessible to you for the remainder of the term. Should the Foundation for Data Permanence fail to find a suitable replacement, it shall purchase the necessary equipment to provide the service itself.

In the unlikely event that you believe one or more pictures covered by this Guarantee have become lost, destroyed or otherwise inaccessible through causes other than user error or force majeure, you must inform us by contacting us at support@swisspicturebank.com. We will then compare the files in your account with our log of pictures confirmed as uploaded as per paragraph 4 above. If this comparison reveals that your account is missing pictures, we will then have 30 days to attempt to remedy this problem by recovering these pictures and reinstating them to your account. If we are unable to reinstate the pictures, we will then pay you the cash award you are due under this Guarantee as soon as is reasonably practicable, which may include the time required to obtain any insurance proceeds which may be due to us in conjunction with this event.

The transmission, storage, viewing and retrieval of photos through the Internet is subject to a variety of conditions that may make such transmission, storage and viewing unreliable. YOUR USE OF YOUR ACCOUNT AND THE SERVICE IS AT YOUR SOLE RISK. YOUR ACCOUNT AND THE SERVICE IS PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT AS OTHERWISE SET FORTH IN OUR GUARANTEE, SWISS DATA GROUP, ON BEHALF OF ITSELF, ITS AFFILIATES, AND ITS LICENSORS, ADVERTISERS AND SUPPLIERS, DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO YOUR ACCOUNT AND THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. OTHER THAN OUR GUARANTEE, SWISS DATA GROUP MAKES NO OTHER REPRESENTATION OR WARRANTY THAT THE ACCESS TO YOUR ACCOUNT OR THE SERVICE WILL BE ERROR-FREE, UNINTERRUPTED OR VIRUS-FREE. .YOU ACKNOWLEDGE THAT ANY PHOTOS YOU SUBMIT FOR ARCHIVING IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA ON YOUR OWN STORAGE DEVICE THAT RESULTS FROM YOUR USE OF THE SERVICE.

IN NO EVENT WILL SWISS DATA GROUP, ITS AFFILIATES, LICENSORS, ADVERTISERS OR SUPPLIERS HAVE ANY OBLIGATION OR LIABILITY TO YOU FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF REVENUE OR PROFITS OR BUSINESS INTERRUPTION, OR OTHER LOSS ARISING OUT OF YOUR USE OF OR YOUR INABILITY TO USE YOUR ACCOUNT OR THE SERVICE THEREIN. IN NO EVENT WILL THE TOTAL LIABILITY OF SWISS DATA GROUP, ITS AFFILIATES, LICENSORS, ADVERTISERS OR SUPPLIERS ARISING OUT OF OR IN RELATION TO THIS AGREEMENT EXCEED THE AMOUNT OF OUR GUARANTEE.

You will defend, indemnify, and hold Swiss Data Group, its parent, subsidiaries, affiliates, agents, officers, directors, and employees, harmless from any claim or demand, including reasonable attorneys' fees and costs, made by any third party due to or arising out of (a) your use of your account and the Service, (b) any photos stored by you in your account and otherwise on the Swiss Data Group servers, and (c) any violation of this Agreement by you.

This agreement lasts for a duration of 99 (ninety-nine) years. Swiss Data Group shall not willingly terminate it within that period. You must not enter into this agreement if the payment of the fees for the services of Swiss Data Group could cause financial problems to you or your dependents or if this agreement could restrict your economic development. If Swiss Data Group has evidence that you have violated the terms of this Agreement, Swiss Data Group may, at its option and in addition to its other remedies, immediately suspend your account. Swiss Data Group will state the offenses that led to the suspension of your account by email. Swiss Data Group will lock your account and reserves the right to remove and destroy photos stored by you on Swiss Data Group's servers after any termination by notice. Any provisions of this Agreement that can be reasonably construed to survive termination will survive termination of this Agreement.

Any notice under this Agreement given by Swiss Data Group to you will be deemed to be properly given if sent by email to your email address as set forth in the Registration Information. It is important that you maintain a correct working email id and update it if necessary to be able to receive Swiss Data Group's communication. Any notice under this Agreement given by you to Swiss Picture Bank will be deemed to be properly given if received by email sent to Swiss Data Group's Customer Service at support@swisspicturebank.com. If you contact us to terminate your account, we will require that you provide us with additional information to confirm your identity for security reasons. On successful cancellation of account by the user, or by Swiss Data Group due to various reasons including non-payment for the services, your account will be locked and we reserve the right to remove and destroy photos stored by you on Swiss Data Group's or its subsidiary agents' servers.

This Agreement will be enforced to the fullest extent permitted by applicable law. If for any reason any provision of this Agreement is held to be invalid or unenforceable under applicable law to any extent, then (a) such provision will be interpreted, construed or reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision and (b) such invalidity or unenforceability will not affect any other provision of this Agreement.

All Stored Photos are subject to the Terms in effect at the time we send you the Confirmation Email for those pictures. Under no circumstances will we change any of these Terms to apply retroactively to pictures that are already uploaded to your account. Except as described above, the terms and conditions of this Agreement may be changed by Swiss Data Group from time to time. Upon any such change, Swiss Data Group will notify you of such change in accordance with paragraph 14 above and post an updated version of this Agreement on the Swiss Data Group website located at www.swissdatagroup.com.

Your right to use the Service is personal to you or designated beneficiaries, and you will not otherwise assign any of your rights, obligations or interest in this Agreement or your account. Without limiting the foregoing, this Agreement is binding upon and inures to the benefit of the parties, which are obliged to assign their obligations under this Agreement to any successor in law. Swiss Data Group's failure to insist upon or enforce strict performance of any provision or right of this Agreement will not be construed as a waiver of any provision or right. This Agreement will be governed by the laws of Switzerland, without regard to its conflict of laws rules. The provisions of the U.N. Convention on Contracts for the International Sale of Goods and any successor treaties will not apply. You will commence any claim or cause of action arising under or otherwise occurring by reason of this Agreement within one (1) year after the claim or cause of action arises or such claim or cause of action is forever barred. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes any and all prior and contemporaneous understandings and agreements.

No party shall be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent that such default or delay is from causes outside the reasonable control of a party. Such causes may include fire, flood, earthquake, natural disasters or acts of God, terrorist acts, riots, civil disorders, government action, or the like (collectively, "force majeure"), provided the non-performing party is without fault in causing such delay or default.

The court at the registered office of Swiss Data Group AG in Switzerland shall have exclusive jurisdiction and venue for any and all claims arising out of or in connection with this Agreement.