Terms of Use

Draft. These terms are being finalized and aren’t in effect yet. Highlighted parts are still to be filled in.

Effective date: [DATE] · Last updated: [DATE]

IMPORTANT: PLEASE READ SECTION 17 (DISPUTE RESOLUTION). IT REQUIRES YOU AND US TO RESOLVE MOST DISPUTES BY INDIVIDUAL BINDING ARBITRATION, NOT IN COURT, AND IT WAIVES YOUR RIGHT TO A JURY TRIAL AND TO TAKE PART IN A CLASS ACTION OR CLASS ARBITRATION. YOU CAN OPT OUT OF ARBITRATION WITHIN 30 DAYS AS EXPLAINED IN SECTION 17.10.

1. Who we are and what these Terms cover

1.1 These Terms of Use (the "Terms") are a contract between you and [COMPANY LEGAL NAME], a [STATE] [ENTITY TYPE] with its principal office at [ADDRESS] ("Pholo," "we," "us" or "our").

1.2 The Terms cover the Pholo website at pholo.com, the Pholo mobile apps, album and request links we generate, and every related feature and service (together, the "Service").

1.3 Our Privacy Policy explains how we collect and use personal information. It is part of these Terms.

1.4 You accept these Terms when you (a) check the box or tap the button that says you agree, (b) create an account, or (c) open, view or contribute to an album through a link. If you do not agree, do not use the Service.

2. Eligibility

2.1 You must be at least 18 years old, or the age of majority where you live if higher, to create an account.

2.2 Someone under 18 may view or add photos to an album only through a link shared by an adult account holder, and only with permission from that person's parent or guardian. The Service is not directed to children under 13, and we do not knowingly collect personal information from them.

2.3 You may not use the Service if we have previously closed your account for violating these Terms, or if the law where you live prohibits it.

2.4 If you use the Service for an organization, you confirm you are authorized to accept these Terms for it, and "you" includes that organization.

3. Accounts and sign-in

3.1 You sign in with your email address and a password. Keep your password secret and your email account secure. Anyone with access to them may be able to get into your account. We may offer other sign-in methods later.

3.2 Give accurate information and keep it current. You are responsible for activity under your account, unless it happened because of our breach of these Terms.

3.3 Tell us right away at [SECURITY EMAIL] if you think someone has accessed your account without permission.

4. Albums, links and guests

4.1 Albums. You can create albums, add photos, and set an album's title, description and place. Albums are private to you until you share them.

4.2 Links work like keys. When you share an album or ask people for photos, we create a link. Anyone who has the link can do what it allows, such as viewing the album or adding photos, until the link expires (you choose how long, currently up to 90 days) or you turn it off. Share links only with people you trust. We are not responsible for what happens when a link is forwarded or posted.

4.3 Guests. People can view or contribute through a link without an account ("Guests"). Guests are bound by these Terms when they use a link. A Guest may give a display name. A Guest can later connect their contributions to an account.

4.4 Album owners. The person who creates an album (the "Owner") controls it. The Owner can edit it, remove any photo in it (including photos added by others), close requests, turn off links, and delete it. Deleting an album deletes every photo in it.

4.5 Removing a photo you added to someone else's album. Only the Owner can remove photos from an album. If you added a photo to another person's album and want it removed, ask the Owner, or contact us at [SUPPORT EMAIL].

4.6 What others can see and do. People who can view an album can see its photos, each photo's capture date, the display names of the people who added photos, likes and comments, and they can download copies of the photos. Once someone downloads a copy, it is outside our control.

4.7 Comments and likes. People with permission to contribute may like and comment on photos. Comment authors and album Owners can delete comments.

5. Your content

5.1 You keep ownership. You keep all rights you have in the photos, text, comments and other material you add to the Service ("Your Content"). We do not claim ownership of it.

5.2 The permission you give us. You give us a worldwide, non-exclusive, royalty-free license to host, store, copy, process, transmit, display and make technical changes to Your Content, only as needed to:

  • run, secure and improve the Service for you and the people you share with;
  • make resized copies and thumbnails, and read and use photo metadata (such as capture time and location) for features like maps, place search and sorting;
  • comply with law and enforce these Terms.

We may sublicense these rights only to service providers who help us run the Service, and only for those purposes.

5.3 What we will not do with Your Content. We will not sell Your Content. We will not use it in advertising. We will not use Your Content to train artificial intelligence models without your separate, express permission.

5.4 When the license ends. The license ends when Your Content is deleted from the Service. It continues only (a) for copies in backups until they are overwritten in the normal course, (b) where the law requires us to keep it, and (c) for copies other people downloaded before you deleted it.

5.5 Your promises about Your Content. You promise that:

  • you own Your Content or have every right and permission needed to add it and grant the license above;
  • you have the consent of the people who appear in your photos where the law requires it, and the consent of a parent or guardian for minors where required;
  • Your Content and its use on the Service do not violate any law or anyone's rights, including copyright, trademark, privacy and publicity rights.

5.6 Keep your own copies. The Service is not a backup service, and it stores resized copies, not your original files. Keep your own copies of anything you care about. See Section 13.

5.7 Content added to your albums by others. Photos and comments added by other people belong to them. Owners can remove them from their albums, but should not copy or reuse them outside the Service without permission.

6. Photo location

6.1 Many photos carry location data recorded by the camera. When you add a photo that includes location, we read and store it to power maps, place search and place tags. The copies of photos we store and serve do not contain that embedded data.

6.2 We show a photo's exact location only to the album Owner and to the person who added the photo. Other signed-in members of the album see an approximate location, about 1 km (0.6 mi) across. Place names attached to a photo, such as town, county, state, country or park, are based on that approximate area.

6.3 An album's place and pin are shown exactly as the Owner sets them to everyone who can open the album, including Guests. Choose an album pin with that in mind.

6.4 If you do not want a photo's location used, remove it before you upload. On iPhone, you can turn off "Location" in the photo picker's options. You can also delete the photo. See our Privacy Policy for details.

6.5 You may not try to work out the exact location of photos you were shown only approximately.

7. Rules for using the Service

You may not use the Service, or help anyone else use it, to:

  1. upload, share or link to any material that sexually exploits or endangers children. We report apparent child sexual abuse material to the National Center for Missing & Exploited Children (NCMEC) as federal law requires, and we cooperate with law enforcement;
  2. share intimate images of any person without that person's consent, including images that are faked or altered with software or artificial intelligence;
  3. harass, threaten, stalk, bully, dox or intimidate anyone, or share someone's photos or location to put them at risk;
  4. post content that is unlawful, defamatory, hateful, or that promotes violence or self-harm;
  5. infringe or misappropriate anyone's copyright, trademark, privacy, publicity or other rights;
  6. impersonate anyone, or misrepresent your connection to anyone;
  7. send spam or unsolicited messages, or use links or invitations to advertise;
  8. upload viruses or malicious code, or files designed to harm the Service or its users;
  9. access albums, photos or data you were not given access to, guess or harvest links, or get around privacy, location or access controls;
  10. scrape, crawl or bulk-collect content or data, except through features we offer for that purpose;
  11. overload, disrupt or interfere with the Service, or get around rate limits or upload limits;
  12. reverse engineer, decompile or copy the Service, except where the law allows it despite this restriction;
  13. use the Service in violation of export control or sanctions laws.

We may remove content and limit, suspend or close accounts and links that we reasonably believe violate these rules or put people or the Service at risk.

8. Reporting content and removal requests

8.1 Non-consensual intimate images. If an intimate image of you, or of someone you are authorized to act for, appears on the Service without consent, send a removal request to [NCII EMAIL OR FORM]. Your request should include:

  • your physical or electronic signature;
  • enough information for us to find the image, such as the link to the album or photo;
  • a short statement that you believe in good faith the image was shared without consent, with any information that helps us confirm this;
  • how we can contact you.

We will remove the image, and make reasonable efforts to find and remove known identical copies, within 48 hours of receiving a valid request, as the TAKE IT DOWN Act requires. We will confirm receipt and tell you when it is done.

8.2 Other reports. The "Report" option on a photo alerts the album Owner. To report anything to us, including content that breaks these Terms, email [REPORT EMAIL].

8.3 Our discretion. We are not obliged to monitor content, but we may review, remove or disable content at any time for any lawful reason. Removing content in good faith does not make us liable to you.

9. Copyright (DMCA) policy

9.1 We respond to notices of claimed copyright infringement under the Digital Millennium Copyright Act (17 U.S.C. § 512). Send notices to our designated agent:

[AGENT NAME] · [COMPANY] · [ADDRESS] · [DMCA EMAIL] · [PHONE]

9.2 Your notice must include: (a) your physical or electronic signature; (b) a description of the copyrighted work; (c) the location of the material, such as its link; (d) your contact information; (e) a statement that you believe in good faith the use is not authorized by the owner, its agent or the law; and (f) a statement, under penalty of perjury, that the notice is accurate and that you are the owner or authorized to act for the owner.

9.3 If your content was removed and you believe that was a mistake, you may send a counter-notice that meets 17 U.S.C. § 512(g)(3). We may restore the content after 10 to 14 business days unless the person who complained tells us they have filed a court action.

9.4 We close the accounts of repeat infringers in appropriate circumstances.

9.5 Sending a false notice or counter-notice can make you liable for damages under 17 U.S.C. § 512(f).

10. Our Service and our rights

10.1 We own the Service, including its software, design, logos and the name "Pholo." These Terms do not give you any rights in them, except the right to use the Service under these Terms.

10.2 We give you a personal, revocable, non-exclusive, non-transferable license to use the Service and to install our apps on devices you own or control, under these Terms and any app store rules that apply.

10.3 If you send us ideas or feedback, we may use them without paying you or owing you anything.

11. Third-party services

11.1 The Service uses other companies' services, such as maps, place search, hosting, storage and email delivery. Some of these load directly in your browser or device. For example, map and place-search providers receive your IP address, the map area you view and the words you search for. Their own terms and privacy policies apply to that use.

11.2 Map data © OpenStreetMap contributors and MapTiler on the website, and Apple Maps in the iPhone app, as credited in the Service.

11.3 We are not responsible for third-party services, websites or content we do not control.

12. Fees and changes to the Service

12.1 The Service is currently free. If we introduce paid features, we will tell you the price and terms before you are charged, and you will not be charged without agreeing.

12.2 We may change, add or remove features. If we stop offering the Service, or a feature that stores Your Content, we will give you at least 30 days' notice and a reasonable way to download Your Content, unless legal, security or abuse reasons prevent it.

12.3 We may set and change limits, such as how many photos, how much storage, or which file types an album can hold.

13. Disclaimers

13.1 THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE." To the fullest extent the law allows, we disclaim all warranties, express or implied, including warranties of merchantability, fitness for a particular purpose, title and non-infringement.

13.2 We do not promise that the Service will be uninterrupted, error-free or secure, that content will never be lost or damaged, or that locations, place names or maps will be accurate. Approximate locations and place tags are estimates.

13.3 We are not responsible for content that users or Guests add, or for how people you share with use it.

13.4 Some places do not allow these exclusions, so some may not apply to you.

14. Limitation of liability

14.1 To the fullest extent the law allows, neither we nor our affiliates, officers, employees, agents or suppliers will be liable for any indirect, incidental, special, consequential, exemplary or punitive damages. This includes lost profits, lost data and loss of goodwill arising from or relating to the Service or these Terms, even if we were told such damages were possible.

14.2 To the fullest extent the law allows, our total liability for all claims relating to the Service or these Terms is limited to the greater of (a) the amount you paid us for the Service in the 12 months before the claim arose, or (b) US $100.

14.3 These limits apply to every theory of liability, including contract, tort (including negligence), strict liability and statute. They do not limit liability that cannot be limited by law, such as liability for fraud, gross negligence or willful misconduct, or for death or personal injury where the law does not allow a limit.

14.4 These limits are a fair allocation of risk and a basic part of the bargain that lets us offer the Service for free.

15. Indemnity

To the extent the law allows, you will defend and compensate us and our affiliates, officers, employees and agents for any third-party claims, losses and reasonable legal costs arising from (a) Your Content, (b) your violation of these Terms or the law, or (c) your violation of anyone's rights. We will tell you about the claim promptly. You may not settle it in a way that admits fault for us or binds us without our consent.

16. Ending these Terms

16.1 You can stop using the Service at any time, and you can delete your account [in Settings / by emailing PRIVACY EMAIL].

16.2 We may suspend or close your account, or turn off links, if you violate these Terms, if the law requires it, or to protect people or the Service. Where reasonable, we will give you notice and a chance to download Your Content first, unless the violation is serious (such as child safety or intimate image abuse), or notice would create a legal or safety risk.

16.3 Sections 5.4, 5.7, 9.5 and 10.3, and Sections 13 to 19, continue after these Terms end.

17. Dispute resolution: arbitration and class action waiver

17.1 Try to resolve it informally first. Before starting arbitration or a small claims case, the party with the dispute must send the other a written notice ("Notice of Dispute"). It must include the person's name, the email address on the account if any, a description of the dispute and the relief sought. It must be personally signed by the person making the claim, not only by a lawyer.

  • Send notices to us at [LEGAL EMAIL] and [ADDRESS]. We will send notices to the email address on your account.
  • For 60 days after the notice is received, both parties will try in good faith to resolve the dispute. Either party may ask for a call or video meeting. If asked, the claimant attends in person (a lawyer may also attend).
  • Statutes of limitations and filing-fee deadlines are paused (tolled) during these 60 days.

17.2 Agreement to arbitrate. If the dispute is not resolved within 60 days, you and we agree to resolve any dispute, claim or controversy arising out of or relating to these Terms or the Service by binding individual arbitration, including claims that arose before these Terms existed. The only exceptions are in Section 17.3. "Dispute" is to be read as broadly as the law allows.

17.3 Exceptions. Either party may instead:

  • bring an individual claim in small claims court, if it qualifies and stays there;
  • ask a court for an individual injunction to stop infringement or misuse of intellectual property, or unauthorized access to the Service;
  • bring a claim that by law cannot be required to be arbitrated, such as claims covered by the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, if the person bringing it chooses court.

17.4 Rules and provider. The American Arbitration Association ("AAA") will administer the arbitration under its Consumer Arbitration Rules and, where they apply, its Mass Arbitration Supplementary Rules, as modified by these Terms (see adr.org). If the AAA is unavailable, the parties will agree on another provider, or a court will appoint one under 9 U.S.C. § 5.

17.5 The arbitrator. One neutral arbitrator will decide the dispute. The arbitrator may award any individual relief a court could award, but only to the individual claimant and only to the extent needed for that claimant's claim. The arbitrator must follow these Terms and the law and will issue a written, reasoned decision. Judgment on the award may be entered in any court with jurisdiction.

17.6 Who decides what. The arbitrator decides all issues, including whether a dispute can be arbitrated and whether this Section is valid, except that a court decides: (a) whether Sections 17.7 (class action waiver) and 17.8 (mass filings) are valid, enforceable or have been breached; (b) whether a party has complied with Section 17.1; and (c) the exceptions in Section 17.3.

17.7 Class action and jury waiver. YOU AND WE MAY BRING CLAIMS AGAINST EACH OTHER ONLY IN AN INDIVIDUAL CAPACITY, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE PROCEEDING, except as Section 17.8 allows for coordinated handling. The arbitrator may not combine more than one person's claims or preside over any class or representative proceeding. YOU AND WE EACH WAIVE THE RIGHT TO A JURY TRIAL.

  • If a claim seeks public injunctive relief (relief whose main purpose is to stop unlawful acts that harm the public), and the law does not allow that relief to be waived, that request for relief is severed. A court decides it only after the individual claims are resolved in arbitration, and the court case is paused until then.
  • If a court decides that this Section 17.7 cannot be enforced for a particular claim, that claim (and only that claim) goes to court, not to class arbitration.

17.8 Mass filings. This Section applies if 25 or more similar demands for arbitration are brought against us, or by us, by the same or coordinated lawyers or organizations ("Mass Filing"). It is meant to allow fair, efficient handling while keeping each person's right to an individual decision.

  • Batches. The claims will be filed and decided in batches of up to 50 claimants, with one arbitrator per batch if the AAA's rules allow, or as the AAA's Process Arbitrator directs. Each claimant's claims are still decided individually, and each claimant takes part in their own arbitration.
  • No one is bound by another person's case. A decision in one batch does not bind claimants in a later batch. After the first batch is decided, the parties will mediate the remaining claims in good faith for up to 60 days, with us paying the mediator's fees, before more batches proceed.
  • Pace and tolling. Later batches proceed in sequence, with no more than [__] batches pending at once, unless the parties agree to more. Limitation periods for every claimant are paused from the date their Notice of Dispute is received until their claim is filed in arbitration.
  • Fees. Each claimant's fees in a Mass Filing are limited as Section 17.9 provides. We will pay the AAA's fees when due under its rules and applicable law.
  • A court decides disputes about this Section. A court with jurisdiction under Section 17.11 may enforce this Section and decide whether it applies, including by ordering claims into batches.

17.9 Costs. The AAA's fee schedules decide fees. Under its Consumer Rules, an individual consumer's filing fee is capped, and we pay the rest of the AAA and arbitrator fees. If your filing fee is more than the court filing fee where you live, we will pay the difference. Each party pays its own lawyers' fees, unless the arbitrator awards them under applicable law. If the arbitrator finds a claim frivolous or brought for an improper purpose, fees are allocated as the applicable rules allow. We will pay all fees we owe on time, including within any period required by applicable law, such as California Code of Civil Procedure §§ 1281.97 to 1281.98.

17.10 Your right to opt out. You can reject this arbitration agreement within 30 days after you first accept these Terms. Email [OPT-OUT EMAIL] or write to [ADDRESS] with your name, the email address on your account if any, and a clear statement that you opt out of arbitration. Opting out does not affect any other part of these Terms.

17.11 Courts. Any dispute not arbitrated, and any action to enforce an award, will be brought only in the state or federal courts located in Salt Lake County, Utah, and you and we consent to their jurisdiction. This does not stop you from using small claims court where you live.

17.12 Changes to this Section. If we change this Section 17, the change will not apply to any dispute for which a Notice of Dispute was already sent. You may reject a material change by emailing [OPT-OUT EMAIL] within 30 days after we notify you. If you do, the most recent version you accepted continues to apply to you.

17.13 Severability. If any part of this Section 17 is found unenforceable, the rest remains in effect, except as stated in Section 17.7.

17.14 Time to bring claims. To the extent the law allows, any claim must be started (by Notice of Dispute) within one year after it arose, or it is permanently barred.

18. Governing law

The Federal Arbitration Act governs Section 17. Otherwise, the laws of the State of Utah govern these Terms, without regard to its conflict-of-laws rules, except where the law of the place you live gives you protections that cannot be waived.

19. General terms

19.1 Changes to these Terms. We may update these Terms. If a change is material, we will tell you at least 30 days before it takes effect, by email or in the Service, unless the change is needed sooner for legal or safety reasons. If you keep using the Service after a change takes effect, you accept it. Section 17.12 governs changes to arbitration.

19.2 Entire agreement. These Terms and the Privacy Policy are the whole agreement between you and us about the Service.

19.3 Assignment. You may not transfer these Terms without our written consent. We may transfer them in a merger, acquisition, sale of assets, or by law.

19.4 No waiver; severability. If we do not enforce a part of these Terms, we have not waived it. If a part is unenforceable, the rest stays in effect, and the unenforceable part is changed only as much as needed to make it enforceable (subject to Section 17).

19.5 Force majeure. We are not liable for delays or failures caused by events beyond our reasonable control.

19.6 Notices. We may send you notices by email or in the Service. You can send legal notices to [LEGAL EMAIL] and [ADDRESS].

19.7 Electronic communications. You agree to receive communications from us electronically, and electronic communications satisfy any legal requirement that a communication be in writing.

19.8 No third-party beneficiaries, except as stated in Section 20.

20. Additional terms for the iOS app

If you got our app from Apple's App Store:

  1. These Terms are between you and us only, not Apple. We, not Apple, are solely responsible for the app and its content.
  2. Your license to use the app is limited to Apple-branded devices you own or control, as the App Store's Usage Rules allow.
  3. Apple has no obligation to provide maintenance or support for the app.
  4. If the app fails to meet any applicable warranty, you may notify Apple, and Apple will refund any price you paid for the app (Pholo is free). To the fullest extent the law allows, Apple has no other warranty obligation for the app.
  5. Apple is not responsible for any claims relating to the app, including product liability claims, claims that the app fails to meet legal or regulatory requirements, and consumer protection or privacy claims.
  6. Apple is not responsible for investigating, defending, settling or discharging any claim that the app infringes a third party's intellectual property rights.
  7. You confirm you are not in a country subject to a U.S. Government embargo or designated as a "terrorist supporting" country, and you are not on any U.S. Government list of prohibited or restricted parties.
  8. Contact us with questions or claims at [ADDRESS] and [SUPPORT EMAIL].
  9. You must follow applicable third-party terms, such as your wireless carrier's, when using the app.
  10. Apple and its subsidiaries are third-party beneficiaries of these Terms and may enforce them against you.

21. Contact

[COMPANY LEGAL NAME] · [ADDRESS] · [SUPPORT EMAIL]