Date of Last Revision: April 2, 2020
Zenfolio® BookMe™ Customer Terms
NOTICE REGARDING ARBITRATION: PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT CUSTOMER SUBMIT CLAIMS CUSTOMER HAVE AGAINST ZENFOLIO TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) CUSTOMER WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST ZENFOLIO ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) CUSTOMER WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) CUSTOMER MAY NOT BE ABLE TO HAVE ANY CLAIMS AGAINST THE ZENFOLIO RESOLVED BY A JURY OR IN A COURT OF LAW.
NOTICE REGARDING ADDITIONAL RIGHTS: CUSTOMER 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 CUSTOMER WOULD LIKE TO EXERCISE SUCH RIGHTS, PLEASE CONTACT US AT [email protected] WITH CUSTOMER’S SPECIFIC REQUEST. WE WILL CONSIDER CUSTOMER’S REQUEST IN ACCORDANCE WITH APPLICABLE LAWS AND, WHERE REQUIRED TO ADHERE TO CUSTOMER’S REQUEST, WE WILL DO SO WITHIN THE TIME PERIODS REQUIRED BY APPLICABLE LAW. TO PROTECT CUSTOMER’S PRIVACY AND SECURITY, WE MAY TAKE STEPS TO VERIFY CUSTOMER’S IDENTITY BEFORE COMPLYING WITH THE REQUEST AND MAY CHARGE A FEE TO PROCESS CUSTOMER’S REQUEST AS ALLOWED BY APPLICABLE LAW.
CUSTOMER ACKNOWLEDGES THAT DUE TO THE NATURE OF THE SERVICE, ZENFOLIO WILL NOT BE ABLE TO CONTINUE TO PROVIDE THE SERVICE TO CUSTOMER IF CUSTOMER ELECTS TO HAVE PERSONAL INFORMATION ERASED, AND THAT WITHOUT USE OF PERSONAL INFORMATION, ZENFOLIO CANNOT PROVIDE THE SERVICE TO CUSTOMER. ACCORDINGLY, CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER WILL NOT BE ALLOWED TO USE THE SERVICE IF CUSTOMER’S PERSONAL INFORMATION IS ERASED, AND CUSTOMER ACKNOWLEDGES AND AGREES – AS AN EXPRESS CONDITION OF CUSTOMER’S USE OF THE SERVICE – THAT NEITHER ZENFOLIO NOR ITS PARENT OR SUBSIDIARY COMPANIES OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, “ZENFOLIO PARTIES”) WILL HAVE ANY LIABILITY TO CUSTOMER FOR TERMINATING CUSTOMER’S USE OF THE SERVICE.
NOTICE REGARDING YOUR RELATIONSHIP WITH US: YOU ACKNOWLEDGE AND AGREE THAT WHILE THE SERVICE FACILITATES APPOINTMENTS AND PHOTOSHOOTS BETWEEN YOU AND ONE OR MORE PHOTOGRAPHERS, AND ENABLES PHOTOGRAPHERS TO ALLOW YOU TO PAY THEM DIRECTLY: (I) ZENFOLIO IS NOT A PARTY TO ANY AGREEMENT BETWEEN YOU AND A PHOTOGRAPHER; (II) ZENFOLIO IS NOT A PAYMENT PROCESSOR, AND THAT ANY PAYMENTS YOU MAKE TO PHOTOGRAPHERS ARE MADE TO THEM DIRECTLY, AND NOT TO ZENFOLIO; (III) ZENFOLIO HAS NO CONTROL OVER YOUR CONDUCT OR THE CONDUCT OF PHOTOGRAPHERS OR CUSTOMERS, OR THE ACTIONS OF A PHOTOGRAPHER’S PAYMENT PROCESSOR; AND (IV) ZENFOLIO WILL NOT BE LIABLE FOR ANY CLAIM, DAMAGE, LOSS OR LIABILITY THAT MAY ARISE FROM ARRANGEMENTS BETWEEN YOU AND A PHOTOGRAPHER OR FROM PAYMENTS MADE OR DUE TO A PHOTOGRAPHER’S PAYMENT PROCESSOR.
NOTICE & CONSENT REGARDING MESSAGING: By electing to use the Service, you acknowledge and agree that: (i) Zenfolio 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 you and photographers, for confirming communications and photoshoots, for compliance with Service requirements, and for assisting to resolve any conflicts, confusion and disputes (collectively, “Message Analysis”). Per the requirements of 18 U.S.C. §2702(b), Zenfolio needs your express consent as a subscriber of the Service, for Zenfolio and its employees and contractors (“personnel”) to use and access that Message Content for Message Analysis. Accordingly, by accepting this Agreement, you hereby grant Zenfolio 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. BY USING THE SERVICE, YOU ARE PROVIDING YOUR EXPRESS CONSENT FOR THE ZENFOLIO TO CONTACT YOU, USING THE CONTACT INFORMATION YOU’VE PROVIDED, TO INFORM YOU ABOUT YOUR APPOINTMENTS OR PHOTOSHOOTS AND FEATURES OF THE SERVICE, AND TO CONTACT YOU ABOUT ZENFOLIO’S PRODUCTS AND SERVICES.
Scheduling, Pricing & Payment: WHILE THE SERVICE MAY PROVIDE MECHANISMS FOR YOU TO BOOK APPOINTMENTS AND PHOTOSHOOTS WITH PHOTOGRAPHERS, THE SCHEDULING AND PRICING OF PHOTOSHOOTS, ANY PHOTOSHOOT CANCELATIONS OR MODIFICATIONS, THE DELIVERY OF PHOTOS, AND ANY REFUND POLICIES SHALL BE AS AGREED UPON BY YOU AND THE PHOTOGRAPHER, EXCEPT FOR ANY NON-REFUNDABLE BOOKING FEES. BY MAKING BOOKINGS THROUGH THE SERVICE, YOU CONSENT TO ALLOW A PHOTOGRAPHER’S PAYMENT PROCESSOR TO CHARGE YOUR CREDIT CARD FOR THE AMOUNTS DUE FOR BOOKINGS AND ANY APPLICABLE TAXES.
Transaction Data: You acknowledge and agree, and hereby provide express consent, that Zenfolio and a photographer’s payment processor may share and exchange data about transactions involving photoshoots (collectively, “Activity”). Customer acknowledges and agrees that the photographer’s payment processor, not Zenfolio, provides payment processing services directly to photographers and that Zenfolio Parties will not have any liability to Customer based on or arising from any action or inaction of such payment processors.
Customer Conduct: Customers 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. Zenfolio reserves the right to investigate and take appropriate legal action against anyone who, in Zenfolio’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 Zenfolio in its sole discretion; (vi) constitutes or contains any inaccurate information or data; or (vii) in the sole judgment of Zenfolio, is objectionable or which restricts or inhibits any anyone from using or enjoying the Services, or which may expose Zenfolio 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 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.
Service Requirements: The Service is a tool to allow you to arrange appointments and photoshoots with photographers, and that Zenfolio is not a party to any transaction for any appointment, photoshoot or booking, and makes no representations or warranties to you that a photographer suitable or qualified to engage in such transactions.
Indemnity and Release: Customer agrees to release, indemnify and hold Zenfolio 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 Customer’s use of the Service, any content Customer uploads to or obtains from the Service, , Customer’s violation of this Agreement, Customer’s violation of any rights of another, Customer’s claims arising from actions or inactions of payment processors, or Customer’s violation of applicable law. If Customer is a California resident, Customer 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 Customer is a resident of another jurisdiction, Customer waive any comparable statute or doctrine.
Disclaimer of Warranties: CUSTOMER’S USE OF THE SERVICE IS AT CUSTOMER’S SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ZENFOLIO 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. ZENFOLIO MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET CUSTOMER’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 CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S EXPECTATIONS.
Limitation of Liability: CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT ZENFOLIO PARTIES WILL NOT BE LIABLE FOR ANY DIRECT, 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 ZENFOLIO 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 CUSTOMER’S CONTENT OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (V) ANY ACTION OR INACTION OF PAYMENT PROCESSORS; OR (VI) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL ZENFOLIO PARTIES AGGREGATE, TOTAL LIABILITY TO CUSTOMER FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE FEES PAYABLE TO ZENFOLIO 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 CUSTOMER OR BE ENFORCEABLE WITH RESPECT TO CUSTOMER. IF CUSTOMER IS DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THIS AGREEMENT, CUSTOMER’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 CUSTOMER’S RIGHTS.
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.”
If Customer has a dispute regarding this Agreement, Customer must first provide us with written notice of the dispute via mail or overnight courier to Zenfolio’s address noted below, with such notice to include Customer’s name and contact information, a written explanation of the claim including all legal claims Customer intends to assert and each set of facts which support each of such claims, and the relief Customer is requesting. Customer agrees that if any of Customer’s claims are omitted from that notice, Customer 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 Customer 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 Customer may assert claims in small claims court if Customer’s claims qualify and Zenfolio may pursue a collection action against Customer 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.
Customer or Zenfolio 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 Customer 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 Customer 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. Customer 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. Customer or Zenfolio may initiate arbitration in either San Mateo County, California, or the federal judicial district where Customer 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.
CUSTOMER MAY OPT OUT OF ARBITRATION BY PROVIDING WRITTEN NOTICE TO ZENFOLIO AT ZENFOLIO’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 CUSTOMER’S ORIGINAL ACCEPTANCE OF THE ZENFOLIO TOS WITH THIS PROVISION INCLUDED. IF CUSTOMER DO NOT SEND NOTICE AS REQUIRED IN THE FOREGOING SENTENCE, CUSTOMER WILL NOT HAVE OPTED OUT OF ARBITRATION. IF CUSTOMER 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.
General: This Agreement constitutes the entire agreement between Customer and Zenfolio and governs Customer’s use of the Service, superseding any prior agreements between Customer and Zenfolio 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, Customer and Zenfolio 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 Zenfolio 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. Customer 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. Customer may not assign this Agreement without the prior written consent of Zenfolio, but Zenfolio may assign or transfer this Agreement in whole or in part, without restriction. Zenfolio Parties shall not have any liability to Customer 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 Customer may be made via either email or regular mail. The Service may also provide notices to Customer of changes to this Agreement or other matters by displaying notices or links to notices generally on the Service.
Notice for California Customers: Under California Civil Code Section 1789.3, Customers 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.
Modifications to Service and/or: Zenfolio reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice.
Last updated: April 2, 2020
3515 A Edison Way
Menlo Park CA 94025