Terms and Conditions

Motive Retouching Terms and Conditions as of October 13, 2008

Welcome to Motive Retouching. Motive Retouching (the "Company") provides clients with an affordable, easy, and professional way to have their photos, headshots, and other images retouched online as well as other services (the "Services"). Clients submit their images to the Company via the Motive Retouching website (the "Site") and/or email, and they download the completed images from the Site, using links provided to them via email and on the Site, upon payment and completion of Services.

However, before clients use the Site or use any of the Motive Retouching Services, they must carefully review the Terms and Conditions set out below (the "Terms"). In addition, specific pages on the Site may set out more Terms and Conditions, all of which are incorporated by reference into these Terms. The Terms may be updated at any time, and we always will provide you with the most recent version. In the case of inconsistencies between these Terms and information included in off-line materials or other online materials not directly on the Site (e.g., promotional materials and mailers, emails, online coupons, etc.), these Terms always will control.

By using the Site and the Services, you indicate that you accept these Terms and that you agree to be bound by them. Acceptance of these Terms creates a binding contract between you and Motive Retouching that you will use the Service only in a manner consistent with these Terms. If you have questions about these Terms, please contact info@motiveretouching.com. Your use of the Site and its Services is conditioned entirely on and subject to your compliance with these Terms. If you do not agree with these Terms, do not access or use the Site or the Service.

I.   Terms of Membership. Submitting information, communications, postings, albums, image files, creative material, photographs, links, comments, and other content (collectively "Content") to Motive via email or via the Site is considered Membership. Motive Retouching membership ("Membership") is available to you if you are at least 13 years of age (18 years of age if submitting any Content involving nudity, partial or otherwise, or related sexually suggestive content. All persons portrayed in such Content must have been at least 18 years of age at the time said Content was created). In addition, you must submit certain requested information to Motive Retouching, including your name and correct email address. When you become a Member, you must provide Motive Retouching with true, accurate, current, and complete information about yourself when such information is requested by the Service (e.g. via registration forms or other informational requests). When registering, please note your password and account information and store them in a safe place, should you choose to store them at all. Under no circumstances should you share your account information. Failure to keep such information in a secure fashion will be at your own risk. Motive is not responsible for any breach of your account or the results of said breach.

A condition of Membership is your "Active Participation" in the Service. Active Participation is defined as uploading your digital images to the Site or emailing them to the Company for retouching or using other processes of the Service offered through the Company at least once per calendar year. After a period of 365 days without any activity, your account will be considered "Inactive" and may be terminated. Similarly, completed work will be available for the client to download up to 60 days after notification. Client should download completed orders in this time frame as part of Active Participation. After this time period, client work may be removed without refund, exchange, or reimbursement.

Additionally, an order will be considered "abandoned" when, within 60 days of a product's creation or rendering of Service by Motive, the user does not provide the necessary input, approval or disapproval regarding a product or Service, or the user does not download the finished product. This is considered a violation of Active Participation. The user's account will be updated after the product's creation or rendering of Service, and email notifications may be sent to the user by Motive requesting input or providing instructions at the start of the 60 day period. It is the user's responsibility, however, to check his or her account for updates and not to rely on emails. Any abandoned orders are not eligible for refunds, exchanges, or reimbursement, and user's account may be terminated.

You must own the copyrights to all images submitted or have the express written consent of the person(s) who own(s) such copyrights, prior to submission. You must keep copies, including originals where applicable, of all files submitted to the Company. Company is not responsible for retaining or providing previously submitted Content. Services do not include preserving client's original Content, preserving for longer than 60 days any Content that is completed using the Services and approved by the client, making back-up copies of such Content, or providing additional copies of such Content. You cannot use the Service as a repository or source for your Content. Company does not guarantee work will be completed in any specific time frame.

Once client submits image and pays for selected Services, Motive will retouch the submitted image based on user specifications and notes. Submitting additional notes after retouching has begun but prior to formalized review process could result in additional charges plus the costs of new services. Upon completion, user will be able to review the retouched image with a watermark. User can send image back to Motive for further retouching if desired. User will be able to resend a given image for further retouching one time only. If still dissatisfied, user must provide Company with reasons for dissatisfaction, at which point a refund will be issued. Keep in mind that images must meet our minimum pixel dimensions of 1200 x 1500 (with 2400 x 3000 pixels being optimal) to be eligible for a refund. If user is pleased with the watermarked and retouched image, he or she must approve this image. Upon approval, user is no longer eligible for refund, exchange, or reimbursement on said image. Upon approval, user will be able to download the completed retouched image with no watermark for up to 60 days. It is user's responsibility to check his or her Motive account in order to download approved images.

At any time and for any reason, Motive Retouching may terminate your Membership (or any part thereof) and your use of the Service, and may remove and discard all Content uploaded or submitted by you or otherwise made available by you within the Service.

II.   Member Conduct. Users of the Service, whether or not Members, may not use the Service to process or send Prohibited Content, including but not limited to when sending referral emails using our email systems such as "Tell a Friend" and others. Generally, Prohibited Content includes Content, emails, or other material that Motive Retouching believes:

•  Is abusive, deceptive, pornographic, obscene, defamatory, slanderous, offensive, or otherwise inappropriate;

•  Comprises copyrighted material used without the express permission of the owner;

•  Violates or otherwise encroaches on the rights of others, including their privacy rights in the case of spam emails;

•  Contains viruses, worms, corrupt files, Trojan horses or other forms of corruptive code, or any other content which may compromise the Service (collectively "Corruptive Code");

•  Advocates illegal activity;

•  Harms anyone, including minors;

•  Involves anyone under 18 years of age submitting any Content involving nudity, partial or otherwise, or involves nudity or other exploitative images where the persons portrayed may not have been 18 years of age at the time Content was created; or

•  Provides a link or reference to any of the above;

Motive Retouching has the sole discretion to determine whether Content is Prohibited Content. All Content that is submitted for Services is the sole responsibility of the person who submitted it. Thus, you are responsible for your Content.

By viewing the Site, you may be exposed to Content that you consider to be offensive. You take sole responsibility for such exposure. Motive Retouching in no way guarantees the accuracy, quality or appropriateness of Content available through the Site or the Service.

III.   No Resale of Service. Your use of the Service may be for personal or commercial purposes. However, you will not reproduce, duplicate, copy, sell, resell or exploit any part of the Service, not including any Content you submit and approve via the Service.

IV.   Privacy Policy. We respect your privacy. We will not provide third parties with your information knowingly. Our use of your information includes, but is not limited to, promotional mailings or emails regarding the Company and offers. Should you choose to no longer receive such mailings, they will include information on how to "Opt out." In the interest of enhanced security, Motive will store as little information as we deem necessary when client pays using credit card via Motive's secure server. We do NOT store your full information. Motive Retouching is not responsible for transactions governed by PayPal or the effects of using PayPal. Please read PayPal's Terms and Conditions before you choose to proceed with their service.

V.   Copyrights and Company Use of Submitted Content. When you use the Service, you submit original Content to the Company, which in turn provides only you with the completed retouched Content in a downloadable form from the Site. The Company uses such Content on the Site, online, via emails, or in physical mailings to promote its Service. Motive Retouching needs the rights to make use of all Content, including but not limited to original submissions of Content and completed retouched Content approved by the Client, on the Site and in the Service, in accordance with and subject to these Terms. Accordingly, as a condition to your Membership and use of the Site and Service, you hereby grant Motive Retouching a perpetual, universal, non-exclusive, royalty-free right to copy, display, modify, transmit, make derivative works of and distribute your Content in online, physical, or other forms, including both original submissions of Content and Content completed via the Service, for the purposes of promoting the Company, the Site, and the Service. As a condition to Membership and use of the Site prior to submitting any Content, you represent and warrant to Motive Retouching that you either own your Content or have written permission from the copyright owner to make such Content available to the Service.

The Service is protected by U.S. and international copyright laws and by other applicable laws. You may not Process any Content owned by someone else without the written consent of the owner of such Content. You are solely responsible for any copyright violations that you may incur as a result of your activities on the Service.

VI.   Indemnity.

YOU WILL INDEMNIFY, DEFEND AND HOLD HARMLESS MOTIVE RETOUCHING, INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, LICENSORS, SUPPLIERS, INFORMATION PROVIDERS, RELATIONS, AND AGENTS (COLLECTIVELY "MOTIVE RETOUCHING AFFILIATES") FROM AND AGAINST ALL LOSSES, CLAIMS, LIABILITIES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS' FEES, RESULTING FROM ANY VIOLATION OF THESE TERMS OR ANY ACTIVITY RELATED TO THE SERVICE (INCLUDING NEGLIGENT OR WRONGFUL CONDUCT) BY YOU OR BY ANY OTHER PERSON ACCESSING THE SERVICE AS YOU OR AS YOUR INVITEE, SUCH AS BY USING YOUR ACCOUNT.

VII.   Limited Warranty.

(A)   No Liability for Content: IN NO EVENT WILL MOTIVE RETOUCHING OR MOTIVE RETOUCHING AFFILIATES BE LIABLE FOR ANY CLAIM OF ANY NATURE, WHETHER DIRECT OR INDIRECT, ARISING FROM OR RELATED TO (I) CONTENT MADE AVAILABLE ON OR THROUGH THE SERVICE, INCLUDING ERRORS OR OMISSIONS IN SUCH CONTENT, OR (II) LOSS OR DAMAGE INCURRED AS A RESULT OF CONTENT.

(B)   Exclusive Remedy: ANY PRODUCT OR SERVICE MADE AVAILABLE THROUGH THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. MOTIVE RETOUCHING PROVIDES ITS CLIENTS ONLY WITH DIGITAL CONTENT BASED ON THE CLIENTS' ORIGINAL CONTENT SUBMITTED, AND THE COMPANY MAKES NO CLAIMS NOR IS IT REQUIRED TO PROVIDE ANY OTHER CONTENT OF ANY KIND. MOTIVE RETOUCHING WARRANTS ONLY THAT DIGITAL CONTENT PROVIDED UPON COMPLETION OF SERVICE, BASED ON ORIGINALS SUBMITTED BY THE CLIENT, WILL BE IN USABLE CONDITION. IF THE DIGITAL CONTENT PROVIDED IS DAMAGED, OF UNACCEPTABLE QUANTITY OR QUALITY, LOST OR NOT RETURNED, MOTIVE RETOUCHING'S SOLE OBLIGATION, AND YOUR SOLE AND EXCLUSIVE REMEDY, WILL BE FOR MOTIVE RETOUCHING TO REFUND THE FULL AMOUNT OF THE PURCHASE PRICE OF THE PROVIDED SERVICES. NOTE THAT UPON APPROVING A RETOUCHED AND NON-WATERMARKED IMAGE YOU ORDERED FROM OUR SITE, YOU FORFEIT ANY RIGHTS TO A REFUND, EXCHANGE, OR REIMBURSEMENT ON THAT IMAGE, REGARDLESS OF WHETHER YOU DOWNLOAD SAID IMAGE. WE PROVIDE YOU WITH WATERMARKED VERSIONS OF YOUR RETOUCHED IMAGE(S) SO THAT YOU MAY INSPECT OUR WORK BEFORE YOU FORFEIT YOUR REFUND AND EXCHANGE RIGHTS, AND UPON APPROVAL, WE WILL MAKE THE APPROVED IMAGE(S) AVAILABLE TO YOU FOR DOWNLOAD WITHOUT A WATERMARK. DOWNLOADING THE APPROVED IMAGE(S) IS YOUR RESPONSIBILITY. ABANDONED ORDERS ARE NOT ELIGIBLE FOR REFUNDS, EXCHANGES, OR REIMBURSEMENT.

(C)   Disclaimer: EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTY, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, MOTIVE RETOUCHING AND MOTIVE RETOUCHING AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. MOTIVE RETOUCHING MAKES NO WARRANTY THAT (i) THE SERVICE WILL BE PROVIDED IN A MANNER THAT IS UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (ii) THE SERVICE IS OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (iii) THE SERVICE WILL MEET YOUR REQUIREMENTS. MOTIVE RETOUCHING MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO SOFTWARE, GOODS, OR SERVICES THAT ARE PURCHASED, ACCESSED, OR OBTAINED THROUGH THE SERVICE OR THAT ARE ADVERTISED ON THE SITE THROUGH THIRD PARTIES, INCLUDING THAT SOFTWARE WILL BE FREE OF CORRUPTIVE CODE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH ADVERTISEMENTS ON THE SITE OR THE USE OF THE SERVICE OR SITE IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARMFUL IMPACT THAT RESULTS FROM THE DOWNLOAD, ACCESS, OR USE OF ANY SUCH MATERIAL.

(D)   Remedy: TO THE FULLEST EXTENT PERMITTED UNDER LAW, THE REMEDY SET FORTH IN THESE TERMS IS YOUR SOLE AND EXCLUSIVE REMEDY.

VIII.   LIMITATION OF LIABILITY.

TO THE FULLEST EXTENT PERMITTED UNDER LAW, MOTIVE RETOUCHING WILL HAVE NO OBLIGATION OR LIABILITY (WHETHER ARISING IN CONTRACT, WARRANTY, TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE) FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING ANY LOSS OF DATA, REVENUE OR PROFIT) ARISING WITH RESPECT TO YOUR USE OF THE SERVICE, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO DAMAGES ARISING FROM (i) USE OR INABILITY TO USE THE SERVICE, (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS BY THIRD PARTIES, (iv) THIRD PARTY CONTENT MADE AVAILABLE TO YOU THROUGH THE SERVICE OR SITE VIA ADVERTISEMENTS, OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.

IX.   Termination. Motive Retouching may, in its sole discretion, terminate your Membership (or any part thereof) or your use of the Service, and remove and discard any Content at any time, without notice, for any reason, including but not limited to: (i) conduct that violates these Terms or other policies or guidelines set forth by Motive Retouching elsewhere within the Service, (ii) conduct Motive Retouching believes is harmful to other Motive Retouching users or the business of Motive Retouching, or (iii) failure to use Service for a period greater than 365 days. Motive Retouching will not be liable to you or any third-party for any termination of your access to the Service.

X.   Choice of Law. The state and federal courts of California are the exclusive forum and venue to resolve any and all disputes arising out of or otherwise relating to these Terms. You consent to personal jurisdiction and venue by the state and federal courts of the State of California.

XI.   Modification of Terms. Motive Retouching 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. Any amendments or modifications made by Motive Retouching will be prospective only.

XII.   Entire Agreement. These Terms constitute the entire agreement between you and Motive Retouching governing your access to the Site and use of the Service. In the case of inconsistencies between these Terms and any information included in off-line materials (e.g., promotional materials and mailers), these Terms always will control.

The failure of Motive Retouching 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.

Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Service or these Terms will be filed within one year after such claim or cause of action arose, or be forever barred.

XIII.   Reporting Violations. You can report abuse of these Terms to abuse@motiveretouching.com.