Thank you for your interest in Potter’s Clay foto.  Below you will find the terms and conditions that apply to all transactions between you and Potter’s Clay.  Please carefully review the following.  You will be required to acknowledge that you have read and accept these terms and conditions before finalizing your order.

These General Terms and Conditions (the "Terms") are applicable to all Customers (the "Customers" and each, individually, a "Customer") of FlyTrap foto, LLC, also doing business as “Potter’s Clay foto,” and hereinafter referred to as “Potter’s Clay.” These Terms shall apply to all products, services and deliveries offered and carried out by Potter’s Clay, including future products, services and deliveries, and to products, services and deliveries negotiated by Potter’s Clay, including but not limited to providing printing services, image printing services, online image printing services, and any other products or services for which Customer engaged Potter’s Clay to perform (the “Service").    

Potter’s Clay provides users with a fun, safe, and easy way to process, print, digitize, store, and share their photographs.  However, before using any of the Potter’s Clay services, it is important that you carefully review the Terms and Conditions set out below (the “Terms”).  You must also agree to be bound by the Terms and Conditions before using Potter’s Clay services.  In addition, specific pages on the Site may set out additional terms and conditions, all of which are incorporated by reference into the Terms.  Terms may be changed or updated at any time, but you can always find the most recent version here.  In the case of inconsistencies between these Terms and information included in off-line materials (e.g. promotional materials and mailers), these Terms will always control.  

By establishing an account, clicking the “Acceptance of Terms” box, and by entering and using this Site, you indicate that you accept the Terms and that you agree to be bound by and subject to them.  Acceptance of the Terms creates a binding legal agreement between you and Potter’s Clay that you will use the Service only in a manner that is consistent with the Terms and all applicable laws.  If you have questions about the Terms, please contact us.  Your use of the Site and its services (together, the “Service”) is entirely conditioned on and subject to your compliance with the Terms.

These Terms shall supersede any different or additional terms in any order forms, confirmation or delivery submitted by Customer; any such different or additional terms are hereby rejected. In the absence of written acceptance of these Terms by Customer, the uploading of any image to the Service will constitute acceptance of these Terms.

Potter’s Clay reserves the right to discontinue Service and to revoke or change prices or terms of Service, except when otherwise indicated in these Terms. If, at any time, it becomes necessary to discontinue Service to Customer, to revoke or modify any provisions in this material, or to allocate distribution of any Service, Potter’s Clay will take whatever action in its sole and absolute judgment is fair and appropriate.

Article 1: Subject of Agreement

  1. The subject of this Agreement is the performance of services and the production of products related to photography prints of images and any other services and products submitted by Customer to Potter’s Clay via an online interface owned by Potter’s Clay, and the printing thereof by Potter’s Clay and subsequent shipment of finished prints to the Customer.
  2. Potter’s Clay is entitled and reserves the right to have all or part of the Service performed by third parties.  Provided however that all third parties will comply with all Terms and Conditions and all applicable laws. 

Article 2: Payment and Delivery Terms

  1. All payments to Potter’s Clay shall be in advance using Potter’s Clay’s online payment system.  Customer shall pay the entire amount due in advance, including sales taxes where applicable. Acceptance of orders is subject to credit approval. No work will proceed on printing until payment is made. No refunds are given once an order has been printed.  All payments will be processed in a confidential manner in any accordance with all applicable laws.  Potter’s Clay complies with all applicable privacy rule and regulations and is committed to protecting customer security.
  2. Shipping and handling are additional chargers unless otherwise expressly indicated at the time of sale. Shipping dates are estimates only. Customer must notify Potter’s Clay within 21 days of the date of shipment if Customer believes any part of a delivery to be missing, incorrect, or damaged.
  3. Unless Customer provides Potter’s Clay with a valid and correct tax exemption certificate applicable to Customer’s purchase, Customer is responsible for all sales and other taxes, fees, or other expenses associated with any order.

Article 3: COLOR VARIATIONS FROM THE ORIGINAL.

  1. Because of variations in equipment, paper, inks-and-other conditions, reasonable variations in color between the original submitted digital image and the print produced by Potter’s Clay must be expected. Prints delivered with variations of this kind shall be considered as acceptable performance.

Article 4: UPLOADING OF IMAGES.

  1. All images must be uploaded using the Potter’s Clay system the Service in [JPG, GIF, PDF or TIFF] format. Images uploaded in other formats may need to be converted by Potter’s Clay and such conversion will be subject to additional charges.
  2. It is the Customer’s sole responsibility to maintain a copy of the original image file. Potter’s Clay is not responsible for loss or accidental damage to images uploaded by the Customer or for the accuracy or quality of images uploaded for printing. No claims or warranties are made by Potter’s Clay regarding Potter’s Clay’s ability to work with the images submitted by Customer in digital format, and no liability is assumed for problems that may arise.
  3. Potter’s Clay may retain a copy of the uploaded image/customer order for a period of 3 months on its servers. Thereafter, unless the Customer submits orders for additional prints to be prepared from the image, the images and any accompanying material will be deleted.  Potter’s Clay may delete any image earlier than 3 months at Potter’s Clay’s sole discretion, and Potter’s Clay is not required to retain images for any period of time.
  4. Potter’s Clay will keep all Customer images confidential and will not release any material to any third party except as otherwise indicated in these Terms and Conditions.  All destruction of Customer data will occur in accordance with all applicable laws, including the North Carolina Identity Theft Protection Act.  Orders for additional prints will cause the 3-month retention period to start anew. Potter’s Clay is not liable for any loss or damage to stored images. When you upload image Content to the Service, the original resolution of your Content may be affected depending on the upload speed you choose.  Further, if you upload an image with more than nine mega-pixels of resolution, Potter’s Clay may in its discretion down-sample the image regardless of the upload speed you choose.
  5. If Potter’s Clay finds that an uploaded image cannot be printed for technical reasons, amounts charged to Customer’s credit card will be refunded through the Potter’s Clay online payment system.

Article 5: CONDUCT, PROHIBITED SUBJECT MATTER AND COPYRIGHT INFRINGEMENT.

  1. Conduct: Potter’s Clay has the sole discretion to determine whether Content is Prohibited Content, and any Content submitted to the Service may be subject to examination from time to time.  You acknowledge that although Potter’s Clay does not and will not examine and review all Content submitted or transmitted to the Service, Potter’s Clay has the absolute right (but not the obligation) to delete, move, and edit materials for any reason, at any time, without notice.  Potter’s Clay has sole discretion to refuse to perform services hereunder for any reason.
  2. You agree not to use the Service:

    • a. For any unlawful purposes;
    • b. To upload, post, order for print, email, or otherwise transmit or communicate any material that is obscene, offensive, blasphemous, pornographic, unlawful threatening, menacing, abusive, and harmful, an invasion of privacy or publicity rights, defamatory, libelous, vulgar, illegal or otherwise objectionable. Potter’s Clay is the sole decision maker as to what material is considered to violate this provision;
    • c. To upload, post, order for print, email, or otherwise transmit or communicate any material that you do not have a right to transmit or communicate under any contractual or fiduciary relationship or which infringes any copyright, trade mark, patent, or other intellectual property right or any moral right of any party including, but not limited to Potter’s Clay;
    • d. To harm minors in any way, including, but not limited to, content that violates child pornography laws, child sexual exploitation laws, and laws prohibiting the depiction of minors engaged in sexual conduct. Potter’s Clay is committed to following all applicable laws, and if required to do so by law will report all such material to the appropriate government authority;
    • e. To forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service;
    • f. To attempt to upload images by any method to another user’s account;
    • g. To upload, post, email, or otherwise transmit any material which is likely to cause harm to Potter’s Clay network or anyone else’s computer systems, including but not limited to that which contains any virus, code, worm, data, or other files or programs designed to damage or allow unauthorized access to the Service which may cause any defect, error, malfunction or corruption to the Service;
    • h. To make images hosted by Potter’s Clay available for viewing by the general public through a publicly posted link to the image or otherwise.
    • i. For any commercial purpose other than to permit a recipient with whom you have shared your images or anyone who accesses the images to order from us photographic prints or products containing those images;
    • j. To transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation;
    • k. To impersonate any person or entity, or otherwise to misrepresent your affiliation with a person or entity; or
    • l. To collect, intercept, or harvest screen names, to collect, intercept, or store personal data about other users of the Service or to solicit or attempt to discover a user’s password, screen name, or other registration information without the user’s express knowledge and consent.
  3. You further agree that you will not:

    • m. Interfere with or disrupt (or attempt to interfere with or disrupt) this Service or Servers or networks connected to this Service, or disobey any requirements, Procedures, policies, or regulations of networks connected to this Service;
    • n. Provide any information to Potter’s Clay that is false or misleading, that attempts to hide your identity, or that you do not have the right to disclose; or
    • 0. Resell the Service products or any portion of the Service without prior written authorization by Potter’s Clay.
  4. Customers may not use the Service to process anything which Potter’s Clay, at its sole discretion, deems Prohibited Subject Matter. Prohibited Subject Matter, as used herein, includes but is not limited to content or other material that Potter’s Clay believes:

    • a. Is abusive, deceptive, pornographic, obscene, defamatory, slanderous, offensive, or otherwise inappropriate;
    • b. Comprises copyrighted material used without the express permission of the owner;
    • c. Violates or encroaches on the rights of others;
    • d. Contains viruses, worms, corrupt files, Trojan horses and other forms of corruptive code, or any other content that may compromise the Service;
    • e. Advocates illegal activity;
    • f. Harms anyone, including minors;
    • g. Any material Potter’s Clay foto otherwise deems is inappropriate, or
    • h. Provides a link to any of the above.
  5. The Customer warrants that the subject matter to be reprinted does not violate the copyright of a third party. Customer also recognizes that because subject matter does not have to bear a copyright notice in order to be protected by copyright law, absence of such notice does not necessarily assure Customer’s right to reproduce an image. Customer further warrants that no copyright notice has been removed from any material submitted to Potter’s Clay for printing. Customer is responsible for all images Customer uploads, shares or copies using the Potter’s Clay products and services.  You must either own all right, title and interest in and to the copyrights in the images or have express permission from the copyright owner to copy and use such images for all purposes related to Potter’s Clay products and services, and the images may not violate or infringe upon the rights of others.  Professional images that are provided to you by professional photographers or made available through websites, magazines, books or other resources, are protected by copyright and should not be uploaded, shared or copied using Potter’s Clay’s products and services.  Customer agrees to indemnify and hold Potter’s Clay harmless for all liability, damages and attorney’s fees that may be incurred in any legal action connected with copyright infringement or any other liability involving the image or images uploaded by the Customer or the print produced from such image or images.
  6. Image Rights and Photography Image Sharing.  Potter’s Clay allows you to upload images to an online database whereby other persons can view and order the images.  In order to enable Potter’s Clay to display your images (for any purpose including but not limited to sample merchandise, purchases by you or others) and fulfill any orders for you or others who have access to your images, you grant Potter’s Clay a non-exclusive, royalty-free license to use, copy, distribute and display all images you upload on the Potter’s Clay site.  When you share images, you allow recipients to share the images with others and make photographic prints from those images, which may include electric, digital and print copies.  Potter’s Clay does not claim ownership rights in any image contained in your account.
  7. Potter’s Clay reserves the right to use its discretion in refusing to deliver to Customer any prints that Potter’s Clay deems to be Prohibited Subject Matter. Because Potter’s Clay does not pre-inspect images submitted for printing via its online interface, Customer shall remain fully liable for the cost of printing, even when Potter’s Clay refuses to deliver any print it deems Prohibited Subject Matter.
  8. Notwithstanding the above, when you access the Site an/or use the Service, you acknowledge and agree that all Content (whether private or public) that is posted and stored on the Site is the sole responsibility of the customer.    In other words, you are responsible for any Content that you submit.  Moreover, you understand that by viewing the Site, you may be exposed to Content that you consider to be offensive and you take sole responsibility for such exposure.  Finally you acknowledge that Potter’s Clay in no way guarantees the accuracy, quality, or appropriateness of Content available on the Site.  In no event shall Potter’s Clay (including its officers, directors, employees, affiliates and agents) be liable for claims of any nature, whether direct or indirect, arising from or related to any Content made available on or through the Service, including (without limitation) errors or omissions in such Content, and loss or damages incurred as a result of use of such Content.

Article 6: INDEMNIFICATION

  1. Customer agrees to indemnify, defend and hold Potter’s Clay, its officers, directors, employees, agents, licensors and suppliers harmless from and against all claims, liabilities, losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from (i) any violation of these Terms, including but not limited to violations of the provisions of Section 5 above, or any activity related to Customer’s use of the Services (including negligent or wrongful conduct) by Customer or any other person accessing or using the Service using Customer’s account and/or (ii) a claim that an image submitted to and printed by Potter’s Clay is Prohibited Subject Matter or infringes third party intellectual property rights.

Article 7: DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.

  1. ALL SERVICES PROVIDED BY Potter’s Clay ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED.
  2. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, Potter’s Clay EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  Potter’s Clay MAKES NO WARRANTY THAT ITS SITE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT THIS SITE OR ITS SERVER IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Potter’s Clay MAKES NO WARRANTY REGARDING ANY SOFTWARE, GOODS, SERVICES, SPECIAL OFFERS, OR THE DELIVERY, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS OR RELIABILITY OF ANY SOFTWARE, GOODS OR SERVICES, PURCHASED, ACCESSED, OR OBTAINED THROUGH Potter’s Clay’S SITE OR ADVERTISED THROUGH Potter’s Clay’S SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Potter’s Clay OR THROUGH THE SITE OR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
  3. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL Potter’s Clay BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA, OR OTHER INTANGIBLES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF Potter’s Clay HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THAT RESULT FROM YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, Potter’s Clay’S SITE OR SERVICES, FROM ANY CHANGES TO THIS SITE OR ITS SERVICES, OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR SUBMISSIONS OR DATA, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT Potter’s Clay IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH CUSTOMER. FURTHER, Potter’s Clay WILL HAVE NO LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED THROUGH THE SITE OR THROUGH THE SERVICE. CUSTOMER AGREES THAT THE AGGREGATE LIABILITY OF Potter’s Clay TO CUSTOMER FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE SITE OR SERVICE IS LIMITED TO THE AMOUNTS CUSTOMER HAS PAID TO Potter’s Clay FOR ACCESS TO AND USE OF THE SITE OR SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER TYPES OF DAMAGES, SO SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY.

Article 8: MISCELLANEOUS.

  1. Claims. Any action hereunder must be brought, if at all, within one (1) year from the accrual of the cause of action. The parties agree that these Terms and any claims hereunder shall be governed by and subject to the state and federal laws of the state of North Carolina, without regard to its conflict of law provisions, and hereby consent to jurisdiction and venue in the courts of the Western District of North Carolina located in Charlotte, North Carolina.
  2. Enforceability. If any provision contained herein is held by final judgment of a court of competent jurisdiction to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of these Terms and the remainder of these Terms shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in these Terms, such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable. Notwithstanding the foregoing, however, if the severed or modified provision concerns all or a portion of the essential consideration to be delivered under these Terms by one party to the other, the remaining provisions of these Terms shall also be modified to the extent necessary to equitably adjust the parties’ respective rights and obligations hereunder.
  3. Force Majeure. Potter’s Clay shall not be liable to Customer or any other person for any failure or delay in the performance of any obligation under these Terms due to events beyond its reasonable control, including, but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, wars, riots and public disorder, sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdown, stoppages or delays, shortages or failures or delays of energy, materials, supplies or equipment, transportation embargoes or delays, acts of God, breakdown in machinery or equipment, and, except as otherwise set forth in these Terms, acts or regulations or priorities of the federal, state or local governments.
  4. Modification of Terms. Potter’s Clay may amend these Terms at any time, for any reason, and without notice, including the right to terminate the Service or any part of the Service.
  5. These Terms constitute the entire agreement between Customer and Potter’s Clay governing Customer’s use of the Service. In the case of inconsistencies between these Terms and any information included or provided in off-line materials (for example, promotional materials and mailers), these Terms will always control. No waiver, alteration or modification of these provisions or any terms will be valid unless made in writing and signed by an officer or other authorized representative of Potter’s Clay. In the event of any discrepancy between any order accepted by Potter’s Clay and these Terms, these Terms shall govern.
  6. No Waiver. The failure of Potter’s Clay to exercise or enforce any Term will not constitute a waiver of such Term. If any Term is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.
  7. Relationship of the Parties. The parties hereto are independent contractors and nothing in these Terms will be construed as creating a joint venture, employment or agency relationship between the parties.
  8. Headings. Paragraph headings are inserted for convenience of reference only and do not form part of these Terms.

 

Facebook

Twitter