ACCEPTANCE OF YAHOO! TERMS.
DESCRIPTION OF SERVICE.
The Service provides functionality that will optimize image files submitted to it through Yahoo!’s YSlow Add-On for Mozilla’s Firefox web browser on the Yahoo! Developer Network. The service uses image format-specific non-lossy optimization tools to squeeze the last bytes out of your images without changing their look or visual quality. Yahoo! will provide you with a report of how many bytes you can save by optimizing your images and all the changed images as a single zip file for download from a temporary URL. This URL will only be valid for 30 minutes after optimization, after which time the optimized image and any associated data will be purged from the system. You, and not Yahoo!, as owner or authorized licensee, are entirely responsible for any and all images optimized using the Service. Yahoo! does not retain any copies of the image submitted to it for optimization, nor of the optimized image except as described herein. You expressly acknowledge and agree that the Service is a free service.
PROHIBITED CONTENT AND CONDUCT.
By submitting your image to the Service for optimization, you represent and warrant that:
You own or have the necessary licenses, rights, consents and permissions to all intellectual property rights, including, as appropriate, patent, trademark, trade secret, copyright, personality or other proprietary rights to your images submitted to the service for optimization, and you authorize Yahoo! to use your images in the manner contemplated in these TOU;
You have the written consent, release, and/or permission of each and every identifiable individual person in your images to use such person's image or likeness in your image for use in the manner contemplated in these TOU;
You will not include any images with content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, pornographic, offensive, indecent, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; and
You will not use the service in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, as determined by Yahoo! in its sole discretion.
SUBMISSION OF YOUR IMAGES TO YAHOO!.
You retain ownership to your images submitted to the Service. However, by submitting your images to Yahoo!, you hereby grant Yahoo! and its affiliates the following worldwide, royalty-free, non-exclusive, sublicensable and transferable rights and licenses: To temporarily host, cache, store, or modify your images to appropriate media formats, standards or mediums as part of the Service.
Yahoo! may elect to provide you with support or modifications for the Service (collectively, "Support"), in its sole discretion, and may terminate such Support at any time without notice to you. Yahoo! may change, suspend, or discontinue any aspect of the Service at any time, including the availability of the Service through the Mozilla Firefox Add-On.
Yahoo! reserves the right to charge fees for future use of or access to the Service in Yahoo!'s sole discretion. If Yahoo! decides to charge for the use or access to the Service, Yahoo! will provide you prior notice of such charges on the Smush.it site.
TERM AND TERMINATION.
These TOU continue until terminated by either party. You may terminate these TOU at any time by discontinuing your use of the Service. These TOU terminate automatically if you violate any term hereof, Yahoo! publicly posts a written notice of termination on Yahoo!'s web site, or Yahoo! sends a written (including email or text message) notice of termination to you directly. Your obligations in these TOU survive any termination of these TOU. Additionally, Sections 3, 4, 8, 9, 10, 11, 12, and 13(c) shall survive any termination of these TOU.
DISCLAIMER OF WARRANTIES.
THE SERVICE IS EXPERIMENTAL. YAHOO! DOES NOT REPRESENT OR WARRANT THAT ANY PORTION OF THE SERVICE IS FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR IS RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. THE SERVICE IS PROVIDED "AS IS" WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND AND YAHOO! EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND NON-INFRINGEMENT. YOUR USE OF THE SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS, DIRECTLY OR INDIRECTLY, FROM YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF DATA OR DAMAGE TO YOUR COMPUTER SYSTEMS OR SOFTWARE.
LIMITATION OF LIABILITY.
YAHOO! SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICE, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE), OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT YAHOO! HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL YAHOO! BE LIABLE TO YOU FOR ANY AMOUNT.
EXCLUSIONS AND LIMITATIONS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN SECTIONS 8 AND 9 MAY NOT APPLY TO YOU.
RELEASE AND WAIVER.
To the maximum extent permitted by applicable law, you hereby release and waive all claims against Yahoo! and its subsidiaries, affiliates, officers, employees, agents, licensors, co-branders, distribution partners or other partners from any and all liability for claims, damages (actual and/or consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, arising from or in any way related to your use of the Service. You understand that any fact relating to any matter covered by this release may be found to be other than now believed to be true and you accept and assume the risk of such possible differences in fact. In addition, you expressly waive and relinquish any and all rights and benefits that you may have under any other state or federal statute or common law principle of similar effect, to the fullest extent permitted by law.
HOLD HARMLESS AND INDEMNITY.
To the maximum extent permitted by applicable law, you agree to hold harmless and indemnify Yahoo! and its subsidiaries, affiliates, officers, employees, agents, licensors, co-branders, distribution partners or other partners from and against:
Any breach by you of a warranty or representation set forth herein; and
Any third party claim arising from or in any way related to your use of the Service, including any liability or expense arising from all claims, losses, damages (actual and/or consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. Yahoo! shall use good faith efforts to provide you with written notice of such claim, suit or action.
Relationship of the Parties. Notwithstanding any provision hereof, for all purposes of these TOU, you and Yahoo! shall be and act independently and not as partner, joint venturer, agent, employee or employer of the other. You shall not have any authority to assume or create any obligation for or on behalf of Yahoo!, express or implied, and you shall not attempt to bind Yahoo! to any contract.
Invalidity of Specific Terms. If any provision of these TOU 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 such documents remain in full force and effect.
Location of Lawsuit and Choice of Law. These TOU and the relationship between you and Yahoo! shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and Yahoo! agree to submit to the personal jurisdiction of the courts located within the county of Santa Clara, California.
No Waiver of Rights by Yahoo!. Yahoo!'s failure to exercise or enforce any right or provision of these TOU shall not constitute a waiver of such right or provision.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Service, or these TOU must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Miscellaneous. The section headings and subheadings contained in these TOU are included for convenience only, and shall not limit or otherwise affect these TOU. Any construction or interpretation to be made of these TOU shall not be construed against the drafter. These TOU and any documents incorporated herein by reference constitute the entire agreement between Yahoo! and you with respect to the subject matter hereof superseding any prior agreements between you and Yahoo! with respect to the Service.