PHOTOBOOKER TERMS OF SERVICE
The Service enables Photographers and Customers to easily arrange photoshoots and to engage in related transactions using the Company’s PhotoBooker platform. For Photographers, the Service offers a unique way to present their capabilities to customers, charge for a booking, and deliver photoshoot results. For Customers, it offers a convenient way to find, book, and pay professional photographers for photoshoots and to receive and download shoot results, and to purchase additional items if made available by the Company.
By setting up an account with the Service or by using the Service, Photographers and Customers (each referred to as “Participant,” “you” and “your”) agree to the terms of this Agreement and are granted a license to use and access the Service as made available by Company. The Service is available only to Participants that can form legally binding contracts. To process photoshoot payments, Photographers are also required to enter into separate agreement with Stripe, Inc. (“Stripe”) as further described below. If the Participant is acting on behalf of another person or entity, the Participant represents and warrants that such person or entity has authorized the Participant to act and enter into legally binding contracts on its or his/her behalf. Without limiting the foregoing, minors in any jurisdiction and individuals who have been suspended or terminated from the Service may not use the Service, whether as a Photographer or Customer.
By electing to use the Service, you acknowledge and agree that: (i) Company may need to review and analyze the content of messages sent by and to you using the messaging features of the Service (“Message Content”) and uploaded content for the purposes of supporting Customers and Photographers, for confirming communications and photoshoots, for compliance with Service requirements, and for resolving any conflicts, confusion and disputes (collectively, “Message Analysis”). Per the requirements of 18 U.S.C. §2702(b), Company needs your express consent as a subscriber of the Service, for Company and its employees and contractors (“personnel”) to use and access that Message Content for Message Analysis. Accordingly, by accepting this Agreement, you hereby grant Company and our personnel a limited license to review your Message Content for the purposes of Message Analysis and to review uploaded content for the purposes of providing the Service.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING PARTICIPANT’S LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT PARTICIPANT SUBMIT CLAIMS PARTICIPANT HAVE AGAINST COMPANY TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) PARTICIPANT WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST COMPANY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) PARTICIPANT WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) PARTICIPANT MAY NOT BE ABLE TO HAVE ANY CLAIMS AGAINST THE COMPANY RESOLVED BY A JURY OR IN A COURT OF LAW.
NOTICE REGARDING ADDITIONAL RIGHTS: PARTICIPANT MAY HAVE THE RIGHT TO EXERCISE ADDITIONAL RIGHTS AVAILABLE UNDER APPLICABLE LAWS, INCLUDING: (A) RIGHT TO ERASURE OR CORRECTION OF PERSONAL INFORMATION; (B) A RIGHT TO OBJECT TO, OR TO RESTRICT, PROCESSING OF PERSONAL INFORMATION, OR (C) A RIGHT TO PORT PERSONAL INFORMATION. IF PARTICIPANT WOULD LIKE TO EXERCISE SUCH RIGHTS, PLEASE CONTACT US AT SUPPORT@PHOTOBOOKER.COM WITH PARTICIPANT’S SPECIFIC REQUEST. WE WILL CONSIDER PARTICIPANT’S REQUEST IN ACCORDANCE WITH APPLICABLE LAWS AND, WHERE REQUIRED TO ADHERE TO PARTICIPANT’S REQUEST, WE WILL DO SO WITHIN THE TIME PERIODS REQUIRED BY APPLICABLE LAW (GENERALLY 30 DAYS FOLLOWING THE REQUEST). TO PROTECT PARTICIPANT’S PRIVACY AND SECURITY, WE MAY TAKE STEPS TO VERIFY PARTICIPANT’S IDENTITY BEFORE COMPLYING WITH THE REQUEST AND MAY CHARGE A FEE TO PROCESS PARTICIPANT’S REQUEST AS ALLOWED BY APPLICABLE LAW.
PARTICIPANT ACKNOWLEDGES THAT DUE TO THE NATURE OF THE SERVICE, COMPANY WILL NOT BE ABLE TO CONTINUE TO PROVIDE THE SERVICE TO PARTICIPANT IF PARTICIPANT ELECTS TO HAVE PERSONAL INFORMATION ERASED, AND THAT WITHOUT USE OF PERSONAL INFORMATION, COMPANY CANNOT PROVIDE THE SERVICE TO PARTICIPANT. ACCORDINGLY, PARTICIPANT ACKNOWLEDGES AND AGREES THAT PARTICIPANT’S ACCOUNT WILL BE AUTOMATICALLY TERMINATED IF PARTICIPANT’S PERSONAL INFORMATION IS ERASED, AND PARTICIPANT ACKNOWLEDGES AND AGREES – AS AN EXPRESS CONDITION OF PARTICIPANT’S USE OF THE SERVICE – THAT NEITHER COMPANY NOR ITS PARENT OR SUBSIDIARY COMPANIES OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, “COMPANY PARTIES”) WILL HAVE ANY LIABILITY TO PARTICIPANT FOR TERMINATING PARTICIPANT’S ACCOUNT AND/OR USE OF THE SERVICE.
PARTICIPANT ACKNOWLEDGES AND AGREES THAT WHILE THE SERVICE FACILITATES PHOTOSHOOTS BETWEEN PHOTOGRAPHERS AND CUSTOMERS, THE COMPANY IS NOT A PARTY TO ANY AGREEMENT BETWEEN PHOTOGRAPHERS AND CUSTOMERS, AND THE COMPANY HAS NO CONTROL OVER THE CONDUCT OF PHOTOGRAPHERS OR CUSTOMERS, SO THE COMPANY WILL NOT BE LIABLE FOR ANY CLAIM, LOSS OR LIABILITY THAT MAY ARISE BETWEEN A CUSTOMER AND A PHOTOGRAPHER RELATED TO AGREEMENTS OR ARRANGEMENTS BETWEEN THEM.
Becoming a Listed Photographer: To participate as a Photographer on the Service, the Photographer must follow Company’s then-current Photographer application process for the Service and be accepted for participation by Company, and the Photographer must follow Stripe’s application process and enter into a separate agreement with Stripe through mechanisms enabled by Company.
Company Registration Process: Company may accept or reject Photographers in its sole discretion and without liability to Participants. Once accepted, the Photographer can establish an account along with the Photographer’s profile, a description of photoshoots offered, geographic travel radius for photoshoots, some of which may be imported based on information you’ve already provided if you already have an account for other services with the Company, and upload other Photographer content using the mechanisms made available by Company. Further, depending on the version of the Service made available by Company and if you already have a Company account, a Photographer may be able to enable Google calendar synchronization through features of the Service, and by doing so, the Photographer is granting Company the right to utilize the Photographer’s access credentials to import calendar information and to publish imported information available through the Service. Photographers with a complete profile and at least one complete photoshoot type will be submitted to the listings available through the Service within a reasonable time. Company has the sole discretion to accept or reject any Photographer for the Service and shall not have any liability for rejection of a Photographer.
Stripe Registration Process: Photographers must complete the Stripe account application process to establish an account with Stripe, including acceptance of Stripe’s terms and conditions and related policies (each a “Stripe Agreement”), and must be accepted by Stripe. Photographers acknowledge and agree, and hereby provide express consent, that Stripe and Company may share and exchange data about Photographer, the Photographer’s Stripe account and all transactions and activity with respect to their Stripe account (collectively, “Activity”). Photographers acknowledge and agree that Stripe, not the Company, provides Stripe services directly to Photographers and that Company and Company Parties will not have any liability to Photographer based on or arising from any action or inaction of Stripe, including but not limited to suspension or termination of a Photographer’s Stripe account or any actions taken or not taken by Stripe with respect to the Photographer’s Stripe account and/or related data.
Verification: The Company may elect to, but is not obligated to, undertake additional identification and background verification of Photographers as permitted by applicable law. As a condition for being allowed to use the Service, Photographers agree to cooperate with any such additional verification procedures as reasonably requested by Company.
Photoshoot Pricing: Photographers may price photoshoots by the hour, with minimum and maximum hourly charges as set by Company from time to time in its sole discretion, and with one or more hours of coverage to include at least a gallery of color corrected images for the Customer, and delivery of the minimum number of digital files specified by the Company for that photoshoot. Pricing and photoshoot changes may be made by the Photographer through mechanisms made available by Company but any such changes do not apply to existing and previously executed bookings. Photographers may not offer, modify, publish or accept alternative pricing, discounts or order changes for photoshoots or digital images outside of the Service, and are limited to any photoshoot changes as enabled by the Service.
Reviews, Ratings & Rankings: Company may make available from time to time various ways for Photographers to add reviews, and may allow Customers to provide, and may itself provide, ratings and/or rankings for Photographers. To the extent Company allows Photographers to include third party ratings, reviews or rankings into the Service, Photographer represents and warrants that it has all necessary rights to allow Company to do so, and that by so doing, Company is not violating the rights of any third party. Each Photographer acknowledges and agrees that: (a) reviews posted by Customers are their opinions and not those of the Company and are not reviewed by Company, and (b) Photographers are prohibited from inhibiting or manipulating reviews, whether directly or with the assistance of third parties. For Customers, all reviews submitted must be truthful and conform to the Participant Conduct provisions set forth below. Company reserves the right to remove reviews at any time. Company Parties shall not have any liability to the Photographer for any matter related to reviews, ratings and/or rankings through or related to the Service, whether provided by the Photographer, Customers, Company or otherwise. Company reserves the right to: (i) determine, in its sole discretion, at any time and from time to time, the factors and methodologies used for ranking Photographer listings, and (ii) block, suspend or remove any Photographer’s listing on the Service and all related information, including but not limited to related reviews, in Company’s sole discretion at any time for any reason or no reason. Each Photographer acknowledges and agrees that Company Parties shall not have any liability to the Photographer for such suspension or removal or for any Photographer listing placement or ranking on the Service.
Listing Removal by Photographers: Through features enabled by the Service, Photographers can block themselves from being listed with the Service at any time provided that the Photographer does not have any booked or pending photoshoots. If the Photographer has booked photoshoots at the time they would like to delete their listing, they need to contact Company support at firstname.lastname@example.org. Please allow several days for listing removals. Listing reactivation is subject to the same application process as provided above.
Permissions: Photographers are responsible for obtaining permission and proper release documentation from any person whose image is posted by the Photographer through the Service, and the Photographer represents and warrants to Company that the Photographer has done so. While Company has the right to refuse or remove any material or activities on the Service in its sole discretion, Company specifically reserves the right to delete any images where Company, in its sole judgment, lacks confidence in the documentation of a release.
Scheduling & Delivery
Bookings: Photoshoot bookings may be made through the mechanisms available through the Service up to 24 hours in advance of the photoshoot. By default, Photographer accounts accept all bookings immediately and automatically if the Photographer has his/her availability for the booking time through the Service. Photographers must contact the Customer a minimum of 2 business days prior to the shoot to confirm details and discuss requirements. At that time, Photographers and Customers will review and agree the location, time, duration and details specific to the photoshoot. Photographers should use diligent efforts to arrive at a reasonable time prior to the start time for the photoshoot in order to meet the client that booked the photoshoot to cover any necessary details. Booked photoshoots cannot be transferred to other parties and must be conducted by the original Photographer (including the Photographer’s designated agents) and Customer.
Delivery of Photos: Once a photoshoot with a Customer has occurred, the Photographer must upload images from the photoshoot to the Customer’s photo gallery on Company within two (2) business days (business days are M-F, 8 am to 6 pm Pacific time) and mark the photoshoot as complete (“Confirmed Delivery”). Photographers acknowledge and agree that: (i) compliance with this paragraph is a condition precedent to Photographer rights to any compensation for a photoshoot arranged through the Service; and (ii) Company shall not have any liability to Photographer for any negative reviews, ratings or rankings on the Service.
Rescheduling, Relocations & Cancelations
Relocations: If it is agreed upon by the Photographer and the Customer, the location and time of the photoshoot may be changed up to 24 hours in advance. If so agreed, the Photographer will update the location through the Service, after which the Customer will be notified of the change via email and must click on the link identified in the email. If the Customer did not agree to the new location or time they can contact support at email@example.com. The new location must be within the Photographer’s designated travel radius and, if so, the Photographer cannot cancel the booking. If the location is not within the Photographer’s designated travel radius, the Photographer may cancel the booking without liability.
Reschedules: Customers may reschedule a photoshoot up to up to 24 hours in advance by directly contacting the Photographer and agree upon a new date and time that works for both parties. If the Customer has contacted the Photographer at least 24 hours prior to the photoshoot, and if a new date cannot be mutually decided upon, then the Customer can cancel the photoshoot, but amounts paid by Customer for the booking of the photoshoot are non-cancelable and non-refundable. If weather or catastrophic event outside of the Customer’s control happens within 24 hours prior to the photoshoot that would result in the inability to conduct the photoshoot as contemplated by the Photographer and Customer, then the Photographer and Customer may negotiate in good faith to reschedule and/or relocate the photoshoot, but if they cannot come to agreement, then amounts paid by Customer for the booking of the photoshoot are non-cancelable and non-refundable.
No Shows: If the Customer doesn’t show up for the booking, Customer is responsible for payment for the booking and amounts charged for the booking are non-refundable. If the Photographer does not show up for the booking, the Photographer shall pay Company an administration fee (a “no-show fee”) in the amount of $25, which may be charged to Photographer’s payment method on file with Company or debited from amounts due Photographer, and Company may take all other actions it deems appropriate, including without limitation, applying a negative rating or review, blocking Photographer’s published availability, or suspending or terminating Photographer’s access to the Service, in each case without liability to the Photographer.
Fees & Payments
Customer Charged at Booking: Customer shall be charged at the Photographer published rates for the type and duration of the photoshoot booked by the Customers, plus applicable taxes (if any), with the Customer’s payment method to be charged at the time of making the booking.
Photographer Paid following Confirmed Delivery: Provided that no complaint has been made by the applicable Customer and that the Photographer has completed a Confirmed Delivery for the photoshoot, funds payable for the photoshoot, net of any taxes, Photographer no-show fees, and net of Company commission, shall be credited to the Photographer’s Stripe within approximately two (2) business days after Confirmed Delivery. The Photographer can then request payout from Stripe, which shall be solely responsible for payment of such amounts to the Photographer. Once the Photographer’s Stripe account is funded, the Company will not have any liability to the Photographer for such amounts. Notwithstanding the foregoing, Company shall have the right to withhold funding of a Photographer’s Stripe account pending investigation of suspicious account activity and to refuse or defer funding for its own protection or for an offset of Photographer’s obligations to the Company or where the Company considers account activity to be in bad faith or to violate this Agreement.
Taxes: The Participant that is subject to applicable taxes under applicable law for the photoshoot and shall be responsible for the payment of such taxes.
Company Commission: For every booking made through the Service, and for additional purchases made by Customers related to those bookings, Company shall be entitled to retain the amount of any credit card fees charged to Company and a commission from amounts paid by the Customer, with the amount of the commission being a flat rate of 20% of the amount charged for the photoshoot and additional purchases for the photoshoot. Such amounts to be as modified by Company from time to time.
Customer Satisfaction Guarantee: In the event the Customer has a reasonable basis to be dissatisfied with the images from the photoshoot, has not downloaded any of those images, and contacts Company at firstname.lastname@example.org within 2 business days of Confirmed Delivery to request a refund, and where Company believes, in its sole discretion, that the service or photo-quality provided is not up to Company’s standards, then partial or full amounts charged to Customer for that photoshoot shall be refunded to the Customer, with Company’s determination of all such matters to be final and binding.
Acknowledgments: BY MAKING OR ACCEPTING BOOKINGS THROUGH THE SERVICE: (I) CUSTOMERS CONSENT TO ALLOW COMPANY TO CHARGE THE CUSTOMER’S CREDIT CARD, EITHER DIRECTLY OR THROUGH ITS PAYMENT PROCESSORS, FOR THE AMOUNTS DUE FOR BOOKINGS AND ANY RELATED PURCHASES MADE THROUGH THE SERVICE; AND (II) PHOTOGRAPHER’S CONSENT TO ALLOW COMPANY, AS PHOTOGRAPHER’S SUBCONTRACTOR AND AGENT, TO RECEIVE PAYMENT FROM CUSTOMERS, DEDUCT THE AMOUNT OF CREDIT CARD FEES, OTHER ALLOWABLE OFFSETS, COMMISSIONS DUE COMPANY AND ANY PHOTOGRAPHER NO-SHOW FEES, AND UPON CONFIRMED DELIVERY, TRANSFER REMAINING AMOUNTS TO PHOTOGRAPHER’S STRIPE ACCOUNT. Further, Photographers acknowledge and agree that Company shall have the right to withhold payments pending investigation of suspicious account activity and to refuse or defer payment for its own protection or for an offset of Photographer’s obligations to the Company or where Company considers account activity to be in bad faith or to violate this Agreement or where any withholding is required under applicable law.
Access and Use of the Service
Uploaded Content: With respect to any content that you upload or provide to us for use with the Service, you (a) represent and warrant that: (i) you own all right, title and interest in and to such content, including, without limitation, all copyrights and rights of publicity contained therein, and that you have obtained all necessary releases and consents; (ii) use of the content you supply does not violate this Agreement and will not cause injury to any person or entity; and (iii) and that you will indemnify Company Parties for all claims resulting from content you supply; and (b) hereby grant to the Company and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, license to copy, upload, perform to use, reproduce, alter the resolution of, transmit, publicly display, distribute, and make available such content as Company deems appropriate for the sole purpose of providing the Service.
Participant Conduct: Participants are solely responsible for all content and materials that they upload, post, publish or display or otherwise use or make available (hereinafter, “upload”) via or in connection with the Service and, in the case of Photographers, for any promotion or communication they generate or post with respect to their listing on the Service. Company reserves the right to investigate and take appropriate legal action against anyone who, in Company’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting offenders to law enforcement authorities. You agree to not use the Service to:
a) upload or store any content that: (i) infringes or misappropriates any intellectual property rights, or violates any other rights, of any other party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially or ethnically, or otherwise objectionable as determined by Company in its sole discretion; (vi) constitutes or contains any inaccurate information or data; or (vii) in the sole judgment of Company, is objectionable or which restricts or inhibits any anyone from using or enjoying the Services, or which may expose Company or any other party to any harm or liability of any type;
b) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
c) violate any applicable local, state, national or international law, or any regulations having the force of law;
d) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
e) solicit personal information from anyone under the age of 18;
f) harvest or collect email addresses or other contact information of other Participants from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
g) advertise or offer to sell or buy any goods or services for any purpose that is not specifically authorized or for which you don’t have any necessary rights;
h) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
i) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Image Access: 24 months after Confirmed Delivery for a photoshoot, Photographers and Customers will not have access to images from that photoshoot. Company shall not have any liability for lack of access to images after such 24-month period.
Image Rights: A The rights of Customers and Photographers to use images from a photoshoot shall be as determined by the applicable Customer and Photographer, subject to the following terms: (i) no rights are granted to Customers unless payment has been made by the Customer; (ii) Photographers may not use any images from photoshoots for any purpose without necessary consents from the Customer and the individuals depicted in those images; and (iii) if Customer’s payments for a photoshoot are subject to chargebacks, the licenses granted to Customer for those images automatically terminates when the chargeback occurs.
Service Requirements: Participants acknowledge and agree that the Service is only an online venue for Participants. Any agreements reached by and between Photographers and Customers are solely among such parties. Company is and agent for and not a party to any transaction for any photoshoot or bookings, and makes no representations or warranties to either Photographers or Customers that either party is suitable or qualified to engage in such transactions. To the full extent permitted by law, Company Parties: (i) make no promises, warranties, or representations as to the Service or its Participants; (ii) make no warranties regarding the Service, which is provided “AS-IS” without warranty of any kind; (iii) disclaim all warranties, express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, and non-infringement; and (iv) disclaim any liability or responsibility for acts, omissions, or conduct of Participants in connection with Service.
Non-Circumvention: In consideration for making the Service available to Photographers and Customers, each Photographer and Customer agrees that for a period of eighteen (18) months from the date one of them identifies the other through the Service, neither will solicit, provide, obtain or arrange photography services with the other outside or separate from the Service, whether directly or through third parties. In the event of violation of the foregoing (a “Circumvention”) and in addition to any other remedies available to Company, for each Circumvention the Photographer and Customer shall each pay Company, as liquidated damages and not as a penalty, the amount of One Thousand Dollars ($1,000.00). Photographers, Customers and Company agree that damages to Company for a Circumvention may be difficult to ascertain, and the foregoing amount is fair and reasonable commensurate with the value of the Services being provided by Company.
Account, Password and Security: Participant is responsible for maintaining the confidentiality of Participant’s password and account, if any, and are fully responsible for any and all activities that occur under Participant’s password or account. Participant agrees to (a) immediately notify Company of any unauthorized use of Participant’s password or account or any other breach of security, and (b) ensure that Participant exit from Participant’s account at the end of each session when accessing the Service. Company will not be liable for any loss or damage arising from Participant’s failure to comply with this paragraph.
Modifications to Service: Company reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. Participants agree that Company will not be liable to Participant or to any third party for any modification, suspension or discontinuance of the Service.
Submissions: You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to the Company are non-confidential, and Company will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you, and you hereby assign to us all right, title and interest in any intellectual property rights you may have or obtain in the Submissions.
Promotional Rights: Each Photographer acknowledges and agrees that for any images included in a Photographer’s listing on the Service, those images will be published through the Service and may be used to market and promote the Service. Accordingly, the Photographer hereby grants to the Company the perpetual right, license and permission to use such portfolio images for such marketing and promotional purposes, and represents and warrants that the Photographer has all necessary rights to grant such rights to the Company. If Photographer does not have such rights, the Photographer shall not upload those images to the Service.
General Practices Regarding Use and Storage:Participant acknowledges that Company may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Company’s servers on Participant’s behalf. Participant acknowledges that Company reserves the right to terminate accounts that are inactive for an extended period of time. Participant further acknowledges that Company reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice, and without liability to Participant.
General Restrictions: All pages and content within the Service and any material made available for download are the property of Company or its licensors or suppliers or of the applicable Photographer. The Service is protected by federal and international copyright and trademark laws. No portion of the materials on the Service may be reprinted, republished, modified, or distributed in any form without the express written permission of Company or the applicable Photographer. Participant agrees that Participant shall respect our intellectual property rights and the intellectual property rights of others. Participant also agrees that Participant shall keep intact any proprietary notices, including copyright notices, contained on any downloaded materials and shall comply with any applicable end user license agreements. Any rights not expressly granted by this Agreement or any applicable end user license agreements are reserved by Company. Participant agrees not to portray Company or any of the products or the Service provided in a false or misleading manner. Participant further agrees not to link to the Service for any purpose or in any way that is defamatory, fraudulent, indecent, or damages the name or reputation of Company Parties.
Customer Account Termination: For Customer accounts, the Customer may terminate the account at any time by contacting Company customer service at email@example.com. Upon termination or expiration of a Customer account with the Service: (i) Customer shall remain liable for payments due for photoshoots, and (ii) Company has no obligation to provide Customer with any originals or copies of any materials uploaded or stored to Customer’s account.
Termination by Company: Participant agrees that Company, in its sole discretion, may suspend or terminate Participant’s account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Company believes that Participant have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of Participant’s use of Service, may be referred to appropriate law enforcement authorities. Company may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. Participant agrees that any termination of Participant’s access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Company may immediately deactivate or delete Participant’s account and all related information and files associated with Participant’s use of the Service and/or bar any further access to such files or the Service. Further, Participant agrees that Company Parties will not be liable to Participant or any third party for any termination of Participant’s access to the Service.
Mobile Services: The Services may include certain services that are available via a mobile device (collectively, the “Mobile Services”). To the extent you access the Services through a mobile device, your wireless Services carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. Some Services features may enable you to receive text updates and promotions as alerts through your mobile device, and by using the Services, you agree to the Mobile Terms and Conditions set forth at the end of this document.
In addition, Company is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, Company is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. Company enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
Indemnity and Release
Participant agrees to release, indemnify and hold Company Parties (each an “Indemnitee”) harmless from any from any and all losses, liabilities, damages, fines, penalties, expenses, including reasonable attorneys’ fees and costs, rights, claims, actions of any kind and injury (including death) arising out of or relating to Participant’s use of the Service, any content Participant uploads to or obtains from the Service, Participant’s connection to the Service, actions or inactions of Stripe based on Activity and/or Participant’s conduct, Participant’s violation of this Agreement, Participant’s violation of any rights of another, or Participant’s violation of applicable law. Further, each Photographer: (i) represents and warrants to Company that they will comply with all the requirements of the Stripe Agreement and that they are solely responsible for their Stripe account Activity; and (ii) shall indemnify, defend, and hold harmless Company Parties from and against any and all refunds, reversals, losses, liabilities, damages, fines, penalties, expenses, including reasonable attorneys’ fees and costs, arising from or related to their Stripe Agreement or Activity. If Participant is a California resident, Participant waives California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” If Participant is a resident of another jurisdiction, Participant waive any comparable statute or doctrine.
Disclaimer of Warranties
PARTICIPANT’S USE OF THE SERVICE IS AT PARTICIPANT’S SOLE RISK. THE SERVICE is PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
COMPANY MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET PARTICIPANT’S REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY PARTICIPANT THROUGH THE SERVICE WILL MEET PARTICIPANT’S EXPECTATIONS.
Limitation of Liability
PARTICIPANT EXPRESSLY UNDERSTANDS AND AGREES THAT COMPANY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF PARTICIPANT’S CONTENT OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (V) ANY ACTION OR INACTION OF STRIPE; OR (VI) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL COMPANY PARTIES AGGREGATE, TOTAL LIABILITY TO PARTICIPANT FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE FEES PAYABLE TO COMPANY FOR THE APPLICABLE PHOTOSHOOT.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO PARTICIPANT OR BE ENFORCEABLE WITH RESPECT TO PARTICIPANT. IF PARTICIPANT IS DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THIS AGREEMENT, PARTICIPANT’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS PARTICIPANT’S RIGHTS.
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.”
If Participant has a dispute regarding this Agreement, Participant must first provide us with written notice of the dispute via mail or overnight courier to Company’s address noted below, with such notice to include Participant’s name and contact information, a written explanation of the claim including all legal claims Participant intends to assert and each set of facts which support each of such claims, and the relief Participant is requesting. Participant agrees that if any of Participant’s claims are omitted from that notice, Participant forever waives those claims and covenant not to assert them in any action or proceeding related to this Agreement. We will attempt to resolve the dispute with Participant without further court action or arbitration.
All disputes, whether based on circumstances in the past or future, which cannot be resolved as provided above which arise out of or relate to this Agreement (including but not limited to this “Dispute Resolution” Section) shall be resolved by binding arbitration before a sole arbitrator, except that Participant may assert claims in small claims court if Participant’s claims qualify and Company may pursue a collection action against Participant in court. The Federal Arbitration Act and federal arbitration law apply. Arbitration does not involve a court or a judge; instead the arbitrator follows these Terms and applicable law and awards relief accordingly.
Participant or Company may initiate arbitration through JAMS and the JAMS JA streamlined arbitration rules and procedures then in force (see www.jamsadr.com for additional information), or may pursue a dispute in court in San Mateo County, California, which Participant hereby consent to be the exclusive jurisdiction and venue for such dispute, and not by arbitration if the dispute qualifies for small claims court or Participant opt out of arbitration, as provided below. The arbitration shall be commenced as an individual arbitration, and not in a class, representative, consolidated or action involving multiple plaintiffs. Participant shall not join or consolidate claims or arbitrate or otherwise participate in any claim as a class representative, class member or in a private attorney general capacity. Any arbitration will be confidential. Participant or Company may initiate arbitration in either San Mateo County, California, or the federal judicial district where Participant resides. The arbitrator’s decision shall be in writing and shall comply with all terms and conditions in the then current Terms of Service. The decision and award rendered shall be final and binding on both parties. The parties acknowledge and agree that these Terms and any award rendered pursuant hereto shall be governed by the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Judgment on the award may be entered in any court of competent jurisdiction. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
PARTICIPANT MAY OPT OUT OF ARBITRATION BY PROVIDING WRITTEN NOTICE TO COMPANY AT COMPANY’S ADDRESS NOTED BELOW, TO THE ATTENTION OF “CLASS OPT OUT COORDINATOR” TO BE RECEIVED NO LATER THAN THIRTY (30) CALENDAR DAYS FROM THE DATE OF PARTICIPANT’S ORIGINAL ACCEPTANCE OF THE COMPANY TOS WITH THIS PROVISION INCLUDED. IF PARTICIPANT DO NOT SEND NOTICE AS REQUIRED IN THE FOREGOING SENTENCE, PARTICIPANT WILL NOT HAVE OPTED OUT OF ARBITRATION. IF PARTICIPANT OPTS OUT OF ARBITRATION AS PROVIDED ABOVE, THE OTHER PROVISIONS OF THESE TERMS SHALL STILL APPLY.
Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation, this section.
This Agreement constitutes the entire agreement between Participant and Company and governs Participant’s use of the Service, superseding any prior agreements between Participant and Company with respect to the Service. This Agreement will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, Participant and Company agree to submit to the personal and exclusive jurisdiction of the state and federal courts located in or for San Mateo County, California. The failure of Company to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement 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 this Agreement remain in full force and effect. Participant agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Participant may not assign this Agreement without the prior written consent of Company, but Company may assign or transfer this Agreement in whole or in part, without restriction. Company Parties shall not have any liability to Participant for any or be deemed to be in default, for any delay or failure to perform any act under this Agreement resulting, directly or indirectly, from acts of God, civil or military authority, acts of public enemy, terrorism, war, accidents, fires, explosions, earthquake, flood, failure of transportation, strikes or other work stoppages, or any other cause beyond its reasonable control. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Notices to Participant may be made via either email or regular mail. The Service may also provide notices to Participant of changes to this Agreement or other matters by displaying notices or links to notices generally on the Service.
Notice for California Participants
Under California Civil Code Section 1789.3, participants of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Mobile Terms and Conditions
Effective Date: November 1, 2019
Receive text updates and promotions from PhotoBooker Alerts through your mobile device. Opt-in through the web form or text PHOTOBOOKER PHOTOBOOKER to 95306 to receive 10 text messages per day with helpful updates and reminders related to your PhotoBooker account. Message and data rates may apply.
By opting in to this service, you consent to receive mobile text alerts using an automatic telephone dialing system. Consent to receive marketing and reminder text messages is not required as a condition of purchasing any goods or services.
By signing up, you are confirming that you are over the age of 13.
Text STOP to 95306 to stop receiving PhotoBooker Alerts messages from Zenfolio (you will receive a confirmation text).
For additional information, text HELP to 95306 or contact firstname.lastname@example.org.
Supported carriers are:
AT&T, Sprint, T-Mobile®, Verizon Wireless, Boost, Cricket, MetroPCS, U.S. Cellular, Virgin Mobile, Google Voice, ACS Wireless, Advantage Cellular (DTC Wireless), Appalachian Wireless, Atlantic Tele-Network International (ATN), Bandwidth, Bluegrass Cellular, Buffalo Wireless, CableVision, Carolina West Wireless, Cellcom, Copper Valley, C-Spire Wireless (formerly Cellsouth), Cellular One of East Central Illinois, Chariton Valley Cellular, Cross (dba Sprocket), Duet IP, Element Mobile, EpicTouch, GCI Communications, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri Cellular), i Wireless (IOWA Wireless), Illinois Valley Cellular, Immix (Keystone Wireless / PC Management), Inland Cellular, Mobi PCS (Coral Wireless LLC), Mosaic, MTA Communications, MTPCS / Cellular One (Cellone Nation), Nex-Tech Wireless, Panhandle Telecommunications, Peoples Wireless, Pine Belt Wireless, Pine Cellular, Pioneer, Plateau, Revol Wireless, RINA, SI Wireless/Mobile Nation, SouthernLinc, SRT Wireless, Thumb Cellular, Union Wireless, United, Viaero Wireless, West Central Wireless, Leaco, Nemont/Sagebrush. T-Mobile is not liable for delayed or undelivered messages.
Last updated: November 1, 2019
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