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PhotoWorks, Inc. Terms of Use

Welcome to PhotoWorks!

PhotoWorks.com, and all other Web sites and electronic forums hosted by PhotoWorks, Inc., is a service for printing, storing, and sharing personal photos as well as a forum for communicating with others (collectively, the “PhotoWorks Services” ). Members can create hardbound photo books, greeting cards, prints and other photography products with their own digital images as well as post comments to electronic forums. We are committed to provide members a fun, safe, and easy experience and we hope you’ll enjoy your visit.

Before you begin setting up your account with PhotoWorks (referred to as “we”, “us”, “PhotoWorks.com” or “PhotoWorks, Inc.”) please read the following Terms of Use (“Terms”) carefully. These Terms govern your access to and use of the PhotoWorks Services. If you agree to these Terms and wish to use the Services, please click on the “Sign-Up” button. This will constitute a binding agreement between you and PhotoWorks, Inc. Your access to and use of the Services are expressly conditioned on your compliance with these Terms. To decline acceptance, click the “Cancel” button. Note that any violation of these Terms may result in termination of our Services to you.

PhotoWorks, Inc. reserves the right to change the Terms from time to time. Please refer to this site periodically for any changes. By continuing to access or use the Service after PhotoWorks, Inc. makes any such changes, you agree to be bound by the revised terms.

1. Terms of Membership
To remain a member (“Member”) of the PhotoWorks.com Service, you must remain in “Good Standing.” Good Standing is defined as complying with the Terms of this agreement.

Members who remain in good standing receive FREE UNLIMITED PHOTO STORAGE on their PhotoWorks.com account.

If you cease to be in Good Standing for any reason, PhotoWorks, Inc. may terminate your Membership (or any part thereof) and your use of the Service, and may remove and discard all information, communications, postings to forums, albums, image files, creative material, photographs, links, comments, and other content (collectively “Content”) uploaded by you or otherwise made available by you within the Service.
2. About your content
You may submit Content to PhotoWorks.com, including without limitation, photographic images, as part as your use of the Service. Under these Terms, any user of the Service, whether or not a Member, are not permitted to provide links to web sites or use the Service to process Content or other materials that PhotoWorks believes:
- could infringe rights of privacy, publicity, copyrights or other intellectual property rights of any third party without the permission of the owner of these rights;
- is abusive, deceptive, threatening, defamatory, obscene, pornographic or otherwise inappropriate or could give rise to any civil or criminal liability under applicable law;
- promotes bigotry, racism, hatred illegal activities or harm against any individual or group, including minors;
- contains viruses, worms, corrupt files, Trojan horse or other sort of corrupted codes.
Any materials that PhotoWorks believes violates these conditions is “Prohibited Content”. While PhotoWorks, Inc. is not responsible for, and does not review or comment on the Content provided by PhotoWorks.com users, we reserves the right in our sole discretion to (i) delete, remove or edit Content that it believes is Prohibited Content, or (ii) take any other action that we deem necessary relating to use or misuse of the Service, for any reason, at any time, and without notice.

You hereby grant to PhotoWorks, Inc. non-exclusive, royalty-free license to use, publish, copy, modify, transmit, display and distribute your Content for the purpose of delivering the Service and warrant that you have a right to grant such a license. In addition, you warrant that all moral rights in any Content and uploaded materials have been waived and do hereby waive any such moral rights.

Your physical or electronic sharing of your images or comments on forums constitutes permission for reprinting by the recipient. PhotoWorks, Inc., is not be liable for the Content of any submission and expressly disclaims all liability relating thereto.
3. Copyright Notice
PhotoWorks, Inc., is committed to protecting photographers’ copyrights and expects users of the Service to do the same. Each user who submits Content is required by US law to own the right to, or to obtain permission to use any image before the image is uploaded or printed at PhotoWorks, Inc. At our discretion and in appropriate circumstances, we may terminate the accounts of users or prevent access to the Service by users who infringe the intellectual property rights of others. If you believe that your work has been copied in a way that infringes your copyrights, please contact us at the following address and provide all relevant details.

Customer Service
ATTN: Copyright Protection
One American Rd
Cleveland OH, 44144
216-889-5000
Email: Copyright@photoworks.com

Pursuant to Title 17, United States Code, Section 512(c)(3), a notification of claimed infringement related to any of the Content hosted by PhotoWorks must be a written communication addressed to the designated agent as set forth above, and must include substantially all of the following:
- A physical or electronic signature of the owner (or person authorized to act on behalf of the owner) of an exclusive right that is allegedly infringed;
- Specific identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works are covered by a single notification, a list of each copyrighted work claimed to have been infringed;
- Information related to the work(s) reasonably sufficient for PhotoWorks to promptly locate the work (e.g. title of work, location within the PhotoWorks, etc.);
- Information reasonably sufficient to permit PhotoWorks to directly contact the complaining party, such as a complete name and address, telephone number, and an email address;
- A statement that the complaining party has a good faith belief that use of the work(s) in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- A statement requesting that PhotoWorks take a specific act with respect to the alleged infringement (e.g., removal, access restricted or disabled); and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
4. Digital Photo Storage
As long as you are a Member in Good Standing, PhotoWorks, Inc. offers free, unlimited storage of your online photos. There is no limit to the Content you can upload. When you upload image Content to the Service, the original resolution of your Content may be affected depending on the upload speed you choose.

You should always preserve your original Content, or make back-up copies of such Content, on your personal system. You should not use the Service as your only repository or source for your Content and agree that PhotoWorks shall have no responsibility for the loss or destruction of such Content.
5. Allowable Photo File Types
The following types of image files are allowed in your account:
.jpg/.jpeg (JPEG format)
6. Photo File Size Restrictions
The maximum individual file size is 10MB. PhotoWorks, Inc. reserves the right to delete any individual photos exceeding this limit, or may in its discretion down-sample the image.
7. Access to Your Account
You can allow other people to view selected images, photo books or other content in your account through PhotoWorks, Inc. online share features such as PhotoMail. The people you invite to view your images through PhotoWorks’ online sharing will be able to see the images you have selected for them but will not have access to your entire account.

You hereby grant permission to PhotoWorks the right to access your account for the following reasons:
- So that We can remind you of your password in case you forget it; if this becomes necessary, we send an email upon your request to the address from which you opened your account;
- To maintain our Service to you and develop new and useful features and services;
- To comply with a court order, subpoena, complaint or a lawful request from governmental authorities.
8. Age Requirements
You must be at least 13 years of age to use our Service.
9. Third-Party Software
We make third-party software available to you from time to time. To access such third-party software, you must first agree to the terms and conditions provided by the third-party software provider governing the use of such software. PhotoWorks, Inc., is not a party to any such arrangement between you and a third-party software provider and disclaims any liability, and provides no warranties relating to such software.

This means that we do not guarantee that any third-party software you access will be free of any contaminating or destructive code, such as viruses, worms or Trojan horses. You acknowledge sole responsibility for and assume all risk arising from your download and use of any such software.
10. Third-Party Links
We may provide links to third-party sites that might be of interest to you. However, we have no control over the content or the availability of these sites. You acknowledge and agree that PhotoWorks, Inc., is not responsible or liable for the availability or accuracy of such sites or the content, products or services on or available from such sites. Links to third-party sites do not imply any endorsement by PhotoWorks, Inc., of such sites or the contents, products, or services available from such sites. It is your responsibility to become familiar with each sites privacy and other policies and terms of service, and to contact that sites Webmaster or site administrator with any concerns. You acknowledge sole responsibility for and assume all risk arising from your use of any such sites.
11. Copyrighted Material, Software and Trademark Information
PhotoWorks, Inc., is a registered trademark, and other PhotoWorks, Inc. product names, service names, slogans or logos referenced in this site are trademarks or registered trademarks of PhotoWorks, Inc including PhotoWorks, PhotoMail, PhotoStreamer, PhotoStreamer2, PhotoAccess, PhotoClutch. All other company, product or service names referenced in this site are used for identification purposes only and are trademarks of their respective owners.

All of the information, content, and materials we offer are protected by copyright and other applicable laws of both the United States and foreign countries. You may not copy, publicly display, modify, or distribute such material without our or the copyright owner's prior written consent. You may use these materials for personal, non-commercial purposes only, subject to the restrictions set forth in these Terms, so long as you do not modify the materials or remove any copyright or any proprietary rights notices contained in the materials.

All right, title, and interest in and to the PhotoWorks.com site and Service is and will remain the exclusive property of PhotoWorks, Inc. and its licensors. The site and Service are protected by copyright, trademark and other laws of both the United States and foreign countries. You may not copy or modify the HTML code used to generate web pages on the site. You may not use the site or Service on, or in connection with, any other website, for any purpose.
12. Privacy Policy
When you create an account with PhotoWorks.com, you need to provide some personal information, such as your name, email address, and mailing address. We agree to protect and use this information pursuant to the terms set forth in our Privacy Policy.

We use Kana Software, Inc., to provide Knowledge Base and Email Contact Services on our site. When you use our Knowledge Base or contact us through forms provided on our site, the name you enter as well as your email address and all other information you provide during the correspondence is shared as necessary for Kana Software, Inc., to provide that service. Kana Software, Inc., is prohibited from using your personally identifiable information for any other purpose.
13. Fee, Payment and Terms
There is no fee to open an account at PhotoWorks.com or any other Web sites hosted by PhotoWorks, Inc. All prices for merchandise or services are in U.S. currency. Your payment must accompany order. If you fail to submit valid payment we may refuse to perform the requested Services. In the case that an order with insufficient payment is processed, we will hold the order for 60 days. During the 60 day period and until the amount is paid in full, PhotoWorks, Inc., may send a notice to the email address or shipping address on file to inform customers of their balance due. If the balance due is not paid within the 60 day period, PhotoWorks, Inc. may exercise its right to charge a handling fee and discard any unpaid property.
14. Gift Certificates
Purchase of and/or use of gift certificates on PhotoWorks.com constitutes acceptance of these terms and conditions in addition to PhotoWorks, Inc. general Terms and Conditions.
1. Gift certificates are issued in U.S. dollars only, and can only be redeemed through the PhotoWorks Web sites: http:/www.photoworks.com.
2. Gift certificates must be used towards the purchase of products listed for sale on the PhotoWorks Web sites or to make charitable contributions to organizations appearing on PhotoWorks Web sites and may only be used in one user's account. Gift certificates cannot be used with third party or partner sites of PhotoWorks, Inc.
3. No gift certificate issued by PhotoWorks or any unused portion thereof shall be redeemable for cash or for other gift certificates, and may not be returned for a cash refund, unless otherwise required by law. Any unused portion of the gift certificate will apply as a credit that can only be redeemed through the PhotoWorks Web site and are not eligible for a cash refund.
4. Once the amount of the gift certificate is entered in the Checkout process, it will automatically be applied to the customer's subsequent purchase(s) until the full value of the certificate is redeemed.
5. Any unused balance will be placed in the user's account as a credit and will be subject to these terms and conditions. Such unused balance is not transferable to another user's account.
6. If an order placed with the gift certificate exceeds the amount of the certificate the user must pay for the balance due with any of the payment methods available on the PhotoWorks Web site.
7. Gift certificates will not be replaced if lost, stolen, or destroyed. It is the customer's obligation to retain mailed gift certificates or a record of an electronic gift certificate in a safe place.
8. PhotoWorks may communicate with purchasers or users of gift certificates about the redemption status, expiration or other terms and conditions of the gift certificates they have purchased/used. In addition to these terms and conditions, the purchase and use of all gift certificates are subject to the PhotoWorks, Inc. general Terms and Conditions and Privacy Policy.
9. PhotoWorks reserves the right to change these terms and conditions at its discretion.
10. All terms and conditions are applicable to the extent permitted by law.
11. PHOTOWORKS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY GIFT CERTIFICATE PURCHASED OR USED, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT A GIFT CERTIFICATE CODE IS NON-FUNCTIONAL, THE USER'S SOLE REMEDY, AND PHOTOWORKS' SOLE LIABILITY, SHALL BE THE REPLACEMENT OF SUCH GIFT CERTIFICATE. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXLCUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO A PARTICULAR PURCHASER OR USER OF A GIFT CERTIFICATE, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT BE APPLICIABLE AND THE USER MAY HAVE ADDITIONAL RIGHTS WITH RESPECT TO THE GIFT CERTIFICATE.
15. Prepaid Prints
Prepaid Print Plans allow customers to purchase a fixed number of prints in advance at a savings, and then redeem them over time. Percentages off promotions do not apply to Prepaid Print Plans. Shipping, handling or applicable tax charges will be applied when credits are redeemed.

Print Credits will be added to your account as soon as your Prepaid Print Plan order is processed and you receive a confirmation email (typically within a few minutes of placing the order.) Once your order has been placed, it cannot be cancelled. Prepaid Print credits are valid for two years from the date of purchase or for such time as required by law. Prepaid Print credits do not have to be used all at once.

Print Credits will be automatically applied to your future orders. Print Credits may be used only for the print sizes and quantities specified in the Plan. The value cannot be transferred to other print sizes, other products, other accounts shipping/handling charges, or any other offers, discounts, promotions, or credits.

PhotoWorks, Inc., reserves the right to cancel or suspend this offer to apply Print Credits toward future orders any time.
16. Promotional Offers
Please note that following rules and restrictions for promotional offers on PhotoWorks.com are subject to change and will vary depending on offer:
1. Each promotional offer is subject to the offer details stated at the bottom of each offer. Some offer redemption codes can only be used once and are limited to one per account.
2. Each promotional code is only valid for one order per account.
3. Only one valid promotional code may be used per order. Offers may not be combined with other offers in the same order and may not be used in conjunction with any other discount, coupon, or promotion in the same order.
4. Promotional codes cannot be applied to orders previously submitted.
5. Some offers may be available to first time customers only. There may be additional restrictions on redemption. Refer to offer detail stated at the bottom of each offer for details.
6. Offers must be redeemed online at the PhotoWorks.com web site and must be applied towards the purchase of PhotoWorks products or services only, as specified in the offer.
7. Promotional offers cannot be used to pay for, nor shall be applied to, taxes, shipping and handling charges or the purchase of Gift Certificates or Prepaid Print Packs, unless otherwise noted.
8. Promotional offers cannot be used in conjunction with Prepaid credits, unless otherwise specified in the offer details.
9. Each offer is valid for a limited time only and expires on the date specified in the offer.
10. Offers have no cash value, are not for resale and are not redeemable for cash.
11. Returned items will only be credited or refunded for the item cost. Promotional offer discounts are not eligible for credit or a refund.
12. PhotoWorks reserves the right to change these terms and conditions at its sole discretion.
13. You acknowledge that PhotoWorks, Inc. is not responsible for the products and services of the merchant that provided you with the promotion being used on our Web site, nor the content, accuracy, compliance with, or any other aspect of the offer, promotional materials, Web site content or any communications from such merchant.
14. All terms and conditions are applicable to the extent permitted by law.
15. PHOTOWORKS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PROMOTIONAL OFFER USED, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT A PROMOTIONAL CODE IS NON-FUNCTIONAL, THE USER'S SOLE REMEMDY, AND PHOTOWORKS' SOLE LIABILITY, SHALL BE REPLACEMENT WITH THE SAME OR SIMILAR OFFER.
17. Canceling the Service
If you would like to delete your PhotoWorks.com account, you need to send an email from the email address used to create your PhotoWorks.com account requesting that we delete your account for you. Once you have cancelled your account, all images and content uploaded to your PhotoWorks.com account will be deleted and will no longer be available.

Customers may update their email address online or by contacting Customer Service.
18. Termination
PhotoWorks, Inc., may, in its sole discretion, terminate or cancel your membership or your use of the Service, and remove and discard any Content and your account at any time, without notice, for any reason, including, but not limited to: (i) conduct that violates these Terms, The Prepaid Terms and Conditions or other policies or guidelines we have set forth elsewhere on the sites hosted by PhotoWorks, Inc.; (ii) conduct we believe is harmful to other PhotoWorks users, our business, or our affiliates, (iii) failure to remain a Member in Good Standing, (iv) any redemption of, or attempt to redeem, fraudulently obtained gift certificates. PhotoWorks, Inc. will not be liable to you or any third party for any termination of your access to the Service as outlined in these Terms.
19. Indemnification
You agree to indemnify, defend and hold us, our officers, directors, employees, agents, licensors, suppliers and any third-party information providers to the Service harmless from and against all claims, liabilities, losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from (i) any violation of these Terms, breach of any warranty under this agreement or any activity related to access to or use of your account (including negligent or wrongful conduct) by you or any other person accessing the Service using your account and/or (ii) a claim that a Content you uploaded infringes third party intellectual property rights.
20. Shipments
All items purchased through PhotoWorks.com or other Web sites hosted by PhotoWorks, Inc. are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to our carrier. We may assign our rights and responsibilities hereunder without notice to you.

PhotoWorks, Inc. reserves the right to ship partial orders (at no additional cost to you). The portion of the order that is partially shipped may be charged to your credit card at the time of shipment.
21. Export
You are responsible for compliance with all local laws, and you are required to comply with U.S. export laws and regulations when you use or export any software or materials provided through the Service.
22. Disclaimer of Warranties
THE SERVICE, CONTENT AND MATERIALS AVAILABLE THROUGH PHOTOWORKS.COM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PHOTOWORKS 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 OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT. PHOTOWORKS MAKES NO WARRANTY THAT ITS SITE OR SERVICES WILL BE UNITERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT THIS SITE OR ITS SERVER ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. PHOTOWORKS MAKES NO WARRANTY REGARDING ANY SOFTWARE, GOODS, SERVICES, SPECIAL OFFERS, OR THE DELIVERY, QUALITY, TIMELINESS, ACCURACY, COMPLETENESS OR RELIABILITY OF ANY SOFTWARE, GOODS OR SERVICES, PURCHASED, ACCESSED OR OBTAINED THROUGH PHOTOWORKS.COM OR ADVERTISED THROUGH PHOTOWORKS.COM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PHOTOWORKS, INC. OR THROUGH THE SITE OR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
23. Limitation of Liability
For purposes of this section, "PhotoWorks" shall include PhotoWorks, Inc, and its divisions, subsidiaries, successors, parent companies, and their employees, partners, principals, agents and representatives, and any third-party providers or sources of information or data.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES IS PHOTOWORKS, INC., 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 PHOTOWORKS, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THAT RESULT FROM YOUR ACCESS OR USE OF, PHOTOWORKS.COM SITE OR SERVICES, FROM ANY CHANGES OF 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 PHOTOWORKS 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 REST ENTIRELY WITH YOU. FURTHERMORE, PHOTOWORKS, INC. HAS NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THE SITE OR THOUGH THE SERVICE. YOU AGREE THAT THE AGREGATE LIABILITY OF PHOTOWORKS, INC. TO YOU FOR ANY AND ALL CLAIMS ARISING FROM THE 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 ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
24. Severability
You agree that the terms of this agreement are severable. If any part of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision most closely matching the intent of the original provision and the remainder of the Terms will continue in effect.
25. Entirety
This agreement shall constitute the complete and exclusive agreement between us, notwithstanding any variance with any written instrument submitted by you, whether formally rejected by Photoworks or not. The acceptance of any purchase order you place is expressly made conditional on your consent to the terms set forth herein. The terms and conditions contained in this agreement may not be modified by you except in a writing duly signed by you and an authorized representative of Photoworks. This agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. The failure of PhotoWorks, Inc. to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision.
26. Governing Laws
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 Ohio without regard to its conflict of law provisions.
27. Arbitration & Jurisdiction.
You and PHOTOWORKS agree that the exclusive remedy for all disputes and claims relating in any way to, or arising out of, this Agreement, the Software or Services, or your use of the Software or Services shall be final and binding arbitration. The arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA" ) and AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules" ). The arbitration shall take place in the State of Ohio. To the fullest extent permitted by law: no arbitration under this License Agreement shall be joined to any other arbitration, including any arbitration involving any other current or former licensee of PHOTOWORKS; no class arbitration proceedings shall be permitted; no finding or stipulation of fact in any other arbitration, judicial or similar proceeding may be given preclusive or collateral estoppel effect in any arbitration hereunder (unless determined in another proceeding between you and PHOTOWORKS); and no conclusion of law in any other arbitration may be given any weight in any arbitration hereunder (unless determined in another proceeding between you and PHOTOWORKS). Your arbitration fees and your share of arbitrator compensation will be limited to those set forth in the AAA's Consumer Rules with the remainder paid by PHOTOWORKS. If such costs are determined to be excessive, PHOTOWORKS will pay all arbitration fees and arbitrator compensation. You and PHOTOWORKS may litigate in court only to compel arbitration under this Agreement, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrator(s). You and PHOTOWORKS hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of Ohio to enforce the provisions of this Section 25 and to resolve any disputes and claims cognizable in court relating in any way, or arising out of, this Agreement, the Software or Services or your use of the Software or Services. The court, not the arbitrator, shall determine arbitrability and enforce the arbitration agreements contained herein, including the prohibition on consolidated arbitrations and class arbitration. This Agreement and all disputes and claims relating in any way to, or arising out of, this Agreement, the Software or Services or your use of the Software or Services shall be governed by the laws of the State of Ohio and the Federal Arbitration Act.
28. Acceptance of Agreement
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS.

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