These Terms of Service (the “Terms of Service” or “Terms”) describe the terms and conditions under which Zenfolio, Inc. (“Zenfolio,” “we,” “us,” “our”) makes available to you (“you” or “your”) an online platform that allows photographers to exhibit, organize, print, sell, exchange, and share digital images, videos and related products (“Photographer Services”), enables end users to search and purchase those products (“End User Services”) through our website at https://www.Zenfolio.com (the “Site”) and hosted websites established by you as part of Photographer Services (“Photographer Sites”) and related services, and such other related services as may be offered through the Site from time to time. The services offered by Zenfolio and utilized by you are referred to collectively as the “Services.”
NOTICE REGARDING ARBITRATION: PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU 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) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
NOTICE REGARDING MESSAGES FROM ZENFOLIO: BY ACCEPTING THESE TERMS, YOU AGREE AND HEREBY PROVIDE YOUR CONSENT, THAT ZENFOLIO MAY CONTACT YOU: (A) BY EMAIL THAT YOU HAVE PROVIDED AND/OR AT THE MOBILE PHONE NUMBER YOU PROVIDED TO ZENFOLIO, BY CALL OR SMS, ABOUT YOUR ACCOUNT, YOUR PAYMENT METHOD, ORDERS, ORDER STATUS, ACCOUNT STATUS, SUBSCRIPTION PERIOD, AND REGARDING INFORMATION PERTINENT TO YOUR ACCOUNT; AND (B) BY CALL, EMAIL OR SMS, TO SEND YOU MARKETING MESSAGES ABOUT YOUR ACCOUNT AND/OR SUBSCRIPTION, AND ABOUT ZENFOLIO’S PRODUCTS AND SERVICES. FOR EMAIL MESSAGES SENT TO YOUR EMAIL ADDRESS, YOU MAY OPT OUT OF RECEIVING THEM AS PROVIDED IN THOSE EMAILS. FOR SMS COMMUNICATIONS TO YOUR WIRELESS PHONE NUMBER, YOU MAY OPT OUT OF RECEIVING THOSE MESSAGES BY FOLLOWING ACCOMPANYING INSTRUCTIONS OR OTHERWISE BY CONTACTING ZENFOLIO SUPPORT AT [email protected] WITH YOUR SPECIFIC OPT OUT REQUEST. FOR THE PURPOSES OF THIS PARAGRAPH, REFERENCE TO “SMS” SHALL MEAN BOTH SMS AND MMS MESSAGES. PLEASE NOTE THAT FOR CERTAIN EMAIL MESSAGES PERTAINING TO YOUR ACCOUNT, YOU MAY NOT BE ABLE TO OPT OUT OF RECEIVING THEM.
NOTICE REGARDING SUBSCRIPTIONS: SUBSCRIPTIONS FOR PHOTOGRAPHER SERVICES AUTOMATICALLY RENEW UNLESS YOU CANCEL THEM. CANCELATIONS MUST BE RECEIVED AT LEAST TWO (2) BUSINESS DAYS PRIOR TO THE DATE OF RENEWAL. YOU WILL BE CHARGED SUBSCRIPTION FEES PLUS APPLICABLE TAXES UNTIL YOUR SUBSCRIPTION IS CANCELED. BY AGREEING TO PURCHASE A SUBSCRIPTION, YOU CONSENT TO ALLOW ZENFOLIO TO CHARGE YOUR CREDIT CARD, EITHER DIRECTLY OR THROUGH ITS PAYMENT PROCESSORS, FOR THE AMOUNTS DUE FOR YOUR INITIAL SUBSCRIPTION PERIOD AND FOR ADDITIONAL SUBSCRIPTION PERIODS UNTIL YOUR ACCOUNT IS CANCELED OR TERMINATED. NO REFUNDS ARE PROVIDED IF YOU CANCEL. TO CANCEL YOUR SUBSCRIPTION, YOU MUST SEND A CANCELATION NOTICE BY EMAIL TO [email protected] AND IDENTIFY THE SUBSCRIPTION YOU DESIRE TO CANCEL. FOR PHOTOGRAPHER SERVICES, YOU MUST HAVE AN ACTIVE CREDIT CARD TO SIGN UP AND MUST MAINTAIN AN ACTIVE CREDIT CARD ASSOCIATED WITH YOUR ACCOUNT IN ORDER TO REQUEST PAYOUTS.
NOTICE REGARDING TRANSFER OF DATA: USE OF THE SERVICES REQUIRES THAT PERSONAL DATA BE PROCESSED BY ZENFOLIO IN THE UNITED STATES OF AMERICA, WHERE THE COMPUTING SYSTEMS AND INFRASTRUCTURE NECESSARY FOR YOU TO USE THE SERVICES ARE LOCATED. FEATURES AND CAPABILITIES OF THE SERVICES WOULD NOT BE AVAILABLE WITHOUT SUCH PROCESSING OF PERSONAL DATA IN THE UNITED STATES OF AMERICA AND YOU HEREBY EXPRESSLY CONSENT TO THE PROCESSING BY, AND TRANSFER OF PERSONAL DATA TO, ZENFOLIO IN THE UNITED STATES OF AMERICA FOR THAT PURPOSE.
NOTICE REGARDING ADDITIONAL RIGHTS: YOU MAY HAVE THE RIGHT TO EXERCISE ADDITIONAL RIGHTS AVAILABLE TO YOU 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 YOU WOULD LIKE TO EXERCISE SUCH RIGHTS, PLEASE CONTACT US AT [email protected] WITH YOUR SPECIFIC REQUEST. WE WILL CONSIDER YOUR REQUEST IN ACCORDANCE WITH APPLICABLE LAWS AND, WHERE REQUIRED TO ADHERE TO YOUR REQUEST, WE WILL DO SO WITHIN THE TIME PERIODS REQUIRED BY APPLICABLE LAW. TO PROTECT YOUR PRIVACY AND SECURITY, WE MAY TAKE STEPS TO VERIFY YOUR IDENTITY BEFORE COMPLYING WITH THE REQUEST AND MAY CHARGE A FEE TO PROCESS YOUR REQUEST AS ALLOWED BY APPLICABLE LAW.
YOU ACKNOWLEDGE THAT DUE TO THE NATURE OF THE SERVICES, ZENFOLIO WILL NOT BE ABLE TO CONTINUE TO PROVIDE ANY SERVICES TO YOU IF YOU ELECT TO HAVE PERSONAL INFORMATION ERASED, AND THAT WITHOUT USE OF PERSONAL INFORMATION, ZENFOLIO CANNOT PROVIDE SERVICES TO YOU. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT YOUR ACCOUNT WILL BE AUTOMATICALLY TERMINATED IF YOUR PERSONAL INFORMATION IS ERASED, AND YOU ACKNOWLEDGE AND AGREE – AS AN EXPRESS CONDITION OF YOUR USE OF THE SERVICES – THAT NEITHER ZENFOLIO NOR ITS PARENT OR SUBSIDIARY COMPANIES OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS WILL HAVE ANY LIABILITY TO YOU FOR TERMINATING YOUR ACCOUNT AND USE OF THE SERVICES.
In addition, when using certain services, you will be subject to any additional terms applicable to such services that may be posted on the Services from time to time. All such terms are hereby incorporated by reference into these Terms of Service.
Access and Use of the Service
Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Zenfolio of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Services. Zenfolio will not be liable for any loss or damage arising from your failure to comply with this paragraph.
Modifications to Services: Zenfolio reserves the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that Zenfolio will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
Storage Limits; General Practices Regarding Use : You acknowledge and agree that: (a) storage capacity is limited based on the type of account you’ve purchased; and (b) your ability to downgrade your account type or storage limits will require that you take necessary actions to reduce storage utilized by you through the Services. You further acknowledge and agree that (y) Zenfolio may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that data or other content will be retained by the Services; and (z) Zenfolio reserves the right to terminate accounts that are inactive for an extended period of time, as determined by Zenfolio in its sole discretion, with or without notice, and without liability to you.
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. IF YOU PROVIDE A MOBILE PHONE NUMBER TO ZENFOLIO, YOU ACKNOWLEDGE AND AGREE, AND YOU HEREBY AUTHORIZE, ZENFOLIO TO CONTACT YOU AT THE PHONE NUMBER WITH AUTOMATED MESSAGES ABOUT THOSE SERVICES, ZENFOLIO’S OTHER PRODUCTS AND SERVICES, AND ABOUT ANY APPOINTMENTS OR MATTERS RELATING TO THE SERVICES YOU UTILIZE.
License to Use the Services and Software: Subject to these Terms, Zenfolio grants you a non-exclusive, non-transferable license when you set up a Zenfolio account for Photographer Services or subscribe to or purchase other Services, to: (i) download and install any desktop software made available by Zenfolio, and not third parties, if any (the “Software”) on devices within your possession and control, subject to limitations as required by Zenfolio from time to time; and (ii) use and access the Services for your own use as enabled by the features of the Services for your account. Except for the foregoing license grant, these Terms do not grant you any rights to patents, copyrights, trade secrets, trademarks, source code, or any other right, title or interest in the Software or Services, ownership of which is retained by Zenfolio and its suppliers, as applicable. Software updates are governed by these Terms. The Software is licensed, not sold, to you for use only under these Terms, and Zenfolio reserves all rights not expressly granted to you. Elements of the Software may not be used separate from the Software as a whole unless subject to a license granting separate use. Except as expressly authorized in these Terms or allowed by applicable law, you may not use, copy, modify, reverse engineer, disassemble, decompile, modify, or transfer the Software, or otherwise attempt to derive the source code of the Software, or authorize any third party to do any of the foregoing. The Software is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth in these Terms. THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.
Conditions of Use
General Restrictions: All pages and content within the Site and any material made available for download are the property of Zenfolio or its licensors or suppliers. Where a photographer utilizes Photographer Services to create materials or generate data, such materials and data are the property of that photographer. The Site is protected by federal and international copyright and trademark laws. No portion of the materials on the Site may be reprinted, republished, modified, or distributed in any form without the express written permission of Zenfolio or the applicable photographer. You agree that you shall respect our intellectual property rights and the intellectual property rights of others. You also agree that you 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 these Terms or any applicable end user license agreements are reserved by Zenfolio. You agree not to portray Zenfolio or any of the products or Services provided in a false or misleading manner. You further agree not to link to the Site for any purpose or in any way that is defamatory, fraudulent, indecent, or damages the name or reputation of Zenfolio, its parent company, its subsidiaries, its affiliates and their respective officers, employees, directors, agents, successors and assigns (collectively, “Zenfolio Parties”). YOUR USE OF THE SITE IS SUBJECT TO THE ARBITRATION AGREEMENT ALONG WITH OTHER RELEVANT PROVISIONS IN THIS TERMS OF SERVICE.
Participant Conduct: You are solely responsible for all content and materials that you upload, post, publish or display or otherwise use or make available (hereinafter, “upload”) via or in connection with the Services. 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 Services, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Services to:
- 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, or where upload or posting of such content would constitute a violation of any applicable law, rule or regulation; (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;
- interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; or
- violate any applicable local, state, national or international law, or any regulations having the force of law;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- solicit personal information from anyone under the age of 18;
- harvest or collect email addresses or other contact information of other participants from the Services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- 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;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Services.
Special Notice for International Use; Export Controls: You agree to comply with any local laws and regulations regarding your right to download, install, import, export or use the Software and/or Services. You acknowledge and agree that the Software is controlled for export purposes and that your use of the Software may be subject to audit to ensure compliance with these Terms. You agree to (i) strictly comply with all United States export laws and regulations, including, but not limited to the U.S. Department of Commerce (DOC) Export Administration Regulations (EAR), the Office of Foreign Asset Control (OFAC) regulations as administered by the Department of Treasury, and all treaties, Executive Orders, laws, statutes, amendments, or supplement thereto, including all applicable international, national, state, regional and local laws, and regulations (ii) not export, re-export or transfer, directly or indirectly, the Software to any prohibited country outlined in the EAR, or to any denied person, entity, or against any general denial order, as listed with the DOC as follows: Denied Persons List, Entities List, the Unverified List, and General Order No. 3 to Supplement No. 1 to Part 736 of the EAR, or on any OFAC list, currently the Specially Designated Nationals, Specially Designated Narcotics Traffickers, or Specially Designated Terrorists, (iii) not export, or re-export the Software to any military entity or military end-use not authorized under the applicable provision of the EAR, and (iv) not to export or re-export into Cuba, Iran, North Korea, Sudan, Syria or any other country subject to U.S. trade sanctions, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; (v) not to license, sell, provide or distribute the Software for any prohibited use or to any prohibited end user.
Commercial Use: Unless otherwise expressly authorized herein or enabled in the Services, you agree not to do any of the following with respect to the Services: display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Services or the use or access thereof.
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.
Facial Recognition Tools
From time to time Zenfolio may make available facial recognition tools to enable Photographers to organize images in the Photographer’s photo galleries. PHOTOGRAPHER’S UTILIZING THOSE TOOLS REPRESENT AND WARRANT TO ZENFOLIO THAT THEY HAVE AND WILL: (I) NOT USE SUCH TOOLS IN VIOLATION OF APPLICABLE LAW OR WITHOUT THE NECESSARY CONSENTS OF DEPICTED INDIVIDUALS, (II) NOT IMPLEMENT SUCH TOOLS WHILE IN THE STATE OF ILLINOIS, (II) NOT USE SUCH TOOLS WITH ANY IMAGES DEPICTING RESIDENTS OR CITIZENS OF THE STATE OF ILLNOIS; (IV) NOT ALLOW PUBLIC ACCESS TO GALLERIES THAT HAVE IMPLEMENTED SUCH TOOLS IN A MANNER THAT ALLOWS FOR IDENTIFICATION OF SPECIFIC NAMED INDIVIDUALS BY THIRD PARTIES EXCEPT WHERE INDIVIDUALS DEPICTED IN, AND IDENTIFIED TO, PHOTOGRAPHS OR IMAGES WITHIN THOSE GALLERIES HAVE PROVIDED THEIR ADVANCE, EXPRESS CONSENT IN COMPLIANCE WITH APPLICABLE LAW; (V) WHERE REQUIRED BY LAW, OBTAIN CONSENT FROM THE PHOTOGRAPHER’S CUSTOMERS AND OTHERS DEPICTED IN IMAGES CREATED FOR THOSE CUSTOMERS, TO GENERATE AND USE FACIAL RECOGNITION DATA AND/OR IDENTIFY THE CUSTOMERS BY NAME IN CONJUNCTION WITH THE USE OF SUCH TOOLS; AND (VI) PROMPTLY CONFORM TO AN INDIVIDUAL’S REQUEST REGARDING THE USE OF SUCH TOOLS OR ANY DATA DERIVED THEREFROM ASSOCIATED WITH THAT INDIVIDUAL. IF YOU ARE A CUSTOMER OF A PHOTOGRAPHER OR A VISITOR TO A PHOTO GALLERY OF A PHOTOGRAPHER, YOU ACKNOWLEDGE AND AGREE THAT THE PHOTOGRAPHER IS SOLELY RESPONSIBLE FOR THE CONTENT MADE AVAILABLE THROUGH THAT GALLERY AND FOR THE MANAGEMENT OF CONTENT, DATA AND RELATED INFORMATION, INCLUDING BUT NOT LIMITED ANY CONTENT GENERATED BY TOOLS UTILIZED BY PHOTOGRAPHERS AND DATA DERIVED THEREFROM, SUCH AS FACIAL RECOGNITION DATA, AND THAT ZENFOLIO PARTIES SHALL NOT HAVE ANY LIABILITY TO YOU, AND YOU HEREBY WAIVE ANY CLAIMS AGAINST ZENFOLIO PARTIES AND COVENANT NOT TO SUE ZENFOLIO PARTIES, FOR, ANY CONTENT, DATA OR INFORMATION EITHER: (I) MADE AVAILABLE THROUGH THIS WEBSITE, (II) GENERATED BY A PHOTOGRAPHER’S USE OF FEATURES OR TOOLS MADE AVAILABLE BY ZENFOLIO, OR (3) ANY ACTION OR FAILURE TO ACT BY A PHOTOGRAPHER WITH RESPECT TO THE FOREGOING.
Photographers acknowledge and agree that Zenfolio, at any time and without any liability to Photographers, may suspend or terminate access to such tools and/or delete any data derived from such tools.
Further, Customers of Photographers acknowledge and agree that it is the Photographer, not Zenfolio, that controls whether to identify facial recognition data to an individual, and that Zenfolio Parties shall not have any liability arising from for the use of facial recognition data as implemented by Photographers.
If you subscribe to Photographer Services, this Section applies to you.
Subscription Period and Subscription Fees: The subscription period for Photographer Services can be month-to-month, yearly, or another duration described in the account features for your account (“Subscription Period”). Accounts for Photographer Services are subject to fees based upon the account type you’ve selected (“Subscription Fees”). For renewals, Zenfolio will automatically charge your credit card the amount of the then-current fee for your type of account, plus applicable taxes. All payments are non-refundable. To the extent that payment mechanisms are provided through third parties, you agree that Zenfolio shall have no liability to you arising out of the acts or omissions of such third parties. BY CREATING AN ACCOUNT FOR PHOTOGRAPHER SERVICES YOU CONSENT TO ALLOW ZENFOLIO TO CHARGE YOUR CREDIT CARD, EITHER DIRECTLY OR THROUGH ITS PAYMENT PROCESSORS, FOR THE AMOUNTS DUE FOR YOUR INITIAL SUBSCRIPTION PERIOD, FOR ANY ACCOUNT OR STORAGE UPGRADES, AND FOR ADDITIONAL SUBSCRIPTION PERIODS UNTIL YOUR ACCOUNT IS CANCELED OR TERMINATED. ONCE YOUR CREDIT CARD IS CHARGED, YOUR CONTROL OF YOUR ACCOUNT IS DEEMED ESTABLISHED.
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 Zenfolio 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 Zenfolio, provides Stripe services directly to Photographers and that Zenfolio, its parent company, and subsidiary companies or any of their respective officers, directors, employees, agents, representatives, successors and assigns (collectively, “Zenfolio 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.
Free Trials: CERTAIN SUBSCRIPTIONS MAY OFFER A FREE TRIAL. IF YOU DECIDE NOT TO CONTINUE USING THE SERVICE AFTER THE FREE TRIAL PERIOD, YOU ACKNOWLEDGE AND AGREE THAT ZENFOLIO WILL PERMANENTLY DELETE ALL OF THE FILES AND IMAGES YOU’VE POSTED TO YOUR FREE TRIAL ACCOUNT AND THAT ZENFOLIO PARTIES SHALL NOT HAVE ANY LIABILITY TO YOU FOR DOING SO.
Account Upgrades and Downgrades:
Account Upgrades: You can upgrade your account type to a different account type or to increase storage at any time. When you upgrade your account type, your Subscription Period restarts, and we will apply the unused portion of your old Subscription Fee to the cost of your upgraded account type. When you increase storage, your Subscription Period stays the same. In either case, you agree that Zenfolio or tis payment processors may charge your credit card for the additional changes, plus applicable taxes.
Account Downgrades: You can downgrade your account to an account with a lower storage level. However, any downgrade will apply, and you will be charged for the downgraded account type, only after the end of the Subscription Period for your existing account, and provided that you’ve decreased your account storage accordingly, as further discussed below.
Your Responsibility to Reduce Utilized Storage for Downgrades: IF YOU DOWNGRADE YOUR ACCOUNT WITH LOWER STORAGE, IT IS YOUR RESPONSIBILITY TO DECREASE THE AMOUNT OF STORAGE UTILIZED TO MEET THE REQUIREMENTS OF YOUR NEW, DOWNGRADED ACCOUNT TYPE. IN ORDER TO DOWNGRADE YOUR ACCOUNT, YOU MUST DECREASE THE AMOUNT OF STORAGE UTILIZED (E.G. BY PERMANENTLY DELETED IMAGES) TO AN AMOUNT EQUAL TO OR LOWER THAN THE LIMITS OF THE NEW ACCOUNT TYPE. IF YOU DO NOT DECREASE THE AMOUNT OF STORAGE UTILIZED TO MEET THE REQUIREMENTS OF THE DOWNGRADED ACCOUNT PRIOR TO THE END OF THE SUBSCRIPTION PERIOD FOR YOUR EXISTING ACCOUNT, YOU ACKNOWLEDGE AND AGREE THAT YOUR ACCOUNT WILL NOT BE CHANGED TO THE DOWNGRADED ACCOUNT TYPE AND YOU WILL BE CHARGED THE SUBSCRIPTION FEE FOR YOUR EXISTING ACCOUNT TYPE.
ANY IMAGES AND/OR FILES IN TRASH ARE PART OF UTILIZED STORAGE, SO THEY MUST BE PERMANENTLY DELETED FROM TRASH IN ORDER TO REDUCE STORAGE UTILIZED BY YOUR ACCOUNT. ONCE PERMANENTLY DELETED FROM TRASH, IMAGES ARE NOT RECOVERABLE.
School and Youth Photographers: If you provide photographic services to schools and/or youth programs, you agree that it is your sole responsibility to be aware of and understand all applicable laws, rules and regulations regarding student and youth personal information, including but not limited to the Family Educational Rights and Privacy Act (“FERPA”), the Children’s Online Privacy Protection Act (“COPPA”) and other applicable laws that may relate to the collection and use of personal data of students or minors with respect to your use of the Service and/or your Photographer Site, together with any contractual requirements imposed upon you by third parties. You shall be solely responsible for compliance with all such laws, rules and regulations and such contractual requirements; you represent and warrant to Zenfolio Parties that your use of the Service will not violate any such laws, rules and regulations or such contractual requirements; and you agree to indemnify, defend and hold harmless Zenfolio Parties from and against any and all claims, losses, liabilities, damages, penalties, fines, costs and expenses (including reasonable attorneys’ fees and costs) arising out of your violation or failure to comply with any such laws, rules and regulations or such contractual requirements.
Availability: Subject to the terms and conditions of this Agreement, Zenfolio shall attempt to provide the Photographer Site and any blog, forum, email, guest book, address book and other features made available to you, and utilized by you, as part of the Photographer Services (“Photographer Site Features”) for twenty-four (24) hours a day, seven (7) days a week throughout the Subscription Period. You agree that from time to time, the Services may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Zenfolio may undertake from time to time; or (iii) causes beyond the control of Zenfolio or which are not reasonably foreseeable by Zenfolio, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks network congestion or other failures. You agree that Zenfolio has no control over the availability of the Services on a continuous or uninterrupted basis and that Zenfolio shall not have any liability to you for any interruptions or unavailability of the Photographer Site or the Photographer Services.
Photographer Site Content: With respect to the Photographer Site Content, you represent and warrant that you own all right, title and interest in and to such Photographer Site Content, including, without limitation, all copyrights and rights of publicity contained therein. Photographers retain their full rights to any of their Photographer Site Content they upload to the Photographer Site, including, but not limited to, photographs, videos and digital products, biographies, and business information and Zenfolio shall not acquire any rights to the Photographer Site Content except as expressly granted herein. Photographers who provide Photographer Site Content hereby grant to Zenfolio 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 Photographer Site Content as Zenfolio deems appropriate for the sole purpose of providing the Photographer Services. Further, each Photographer understands and agrees that Zenfolio may (but is not obligated to) keep archives of Photographer Site Content for the purpose of maintaining business records of Zenfolio and preserving evidence of its provision of Photographer Services. By uploading or otherwise making available any Photographer Site Content, you hereby grant Zenfolio and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your Photographer Site Content in connection with the operation of the Photographer Services.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services (“Submissions”), provided by you to Zenfolio are not confidential and Zenfolio will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You acknowledge and agree that Zenfolio may preserve Photographer Site Content and may also disclose the same if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Zenfolio, its subscribers, and/or the public.
Photographer Accounts: While payments from purchases you’re your customers are intended to be managed through your Stripe account, Zenfolio may provide an alternative method for such payments and, if so, this paragraph shall apply. Zenfolio will provide, as your subcontractor and agent, and with you as principal, and as part of its fulfillment services included in Photographer Services, an account (a “Photographer Account”), where payments to you from purchasers will be recorded, net of any fees associated with the transactions for your type of Photographer Services account. Zenfolio will pay out account balances to you, net of fees, upon request. Zenfolio will pay account balances to you via PayPal, electronic bank transfer (U.S. only), or bank check (U.S. only), if available, within (5) business days from the request. Payout by bank check will result in a processing charge of $5.00 to the Photographer Account. You must maintain an active credit card associated with your account in order to request payouts. Notwithstanding the foregoing, Zenfolio shall have the right to withhold payouts until you provide an active credit card associated with your account and/or pending investigation of suspicious account activity and to refuse or defer payment for its own protection or for an offset of your obligations to Zenfolio (including for the payment of Photographer Services) or where Zenfolio considers account activity to be in bad faith or to violate these Terms. In the event that a Photographer’s Account has a negative balance, Zenfolio shall have the right to either discontinue placement of orders via the Photographer Services until the negative balance is cured or terminate the account. Nothing in these Terms shall limit Zenfolio’s right to pursue all remedies allowed by law to collect on delinquent accounts.
Dormant Photographer Accounts: If there is no activity in your Photographer Account (such as a login or disbursement) for a period of 120 days, and your account maintains a positive balance, then you agree that Zenfolio shall apply a charge an account administration fee of US$5.00 per month, at the beginning of each month. If you do not log in to your Zenfolio account for two or more years, Zenfolio may close your account and send the balance to your primary address that you have provided to us, or, if required, escheat the balance to your state of residency. Zenfolio will determine your state of residency based on the state listed in the primary address you provided to us. If your address is unknown or registered in a foreign country, your Zenfolio balance will be escheated to the State of California. Where required, Zenfolio will send you a notice prior to escheating any funds in your Photographer Account. If you fail to respond to this notice, the balance will be escheated to the applicable state. If you would like to claim any escheated amounts from the applicable state, please contact the applicable state’s unclaimed property administrator.
Orders: Depending on your preferences you make available, a purchaser may have the option of placing orders to be fulfilled by you directly, using print labs and shipping methods selected by you. Alternatively, when made available, purchasers may place orders to be fulfilled by Zenfolio and its affiliates and suppliers. You agree that you shall be solely responsible for processing orders placed for fulfillment directly by you. It is your responsibility to fulfill orders placed for fulfillment directly by you within a reasonable time of the placement of the order. You agree that you shall be responsible for reviewing, approving, and taking all other necessary steps to process the orders placed for fulfillment by Zenfolio within a reasonable time of the placement of the order. Once you have approved the order and taken all other steps necessary to process the order, Zenfolio shall be responsible for processing and shipping the orders placed for fulfillment by Zenfolio to your purchasers, in accordance with the terms of the order. Zenfolio shall notify you electronically of all orders placed within 24 hours. Zenfolio shall notify you of any refunds or fee disputes by any purchaser. Purchasers pay Zenfolio, as your agent, for orders placed for fulfillment by Zenfolio. Purchasers pay you directly for orders placed for fulfillment directly by you. You agree that you shall be solely responsible for all aspects of the orders placed for fulfillment directly by you.
Customer Support: You are solely responsible for providing customer support to the users and purchasers of your Photographer Site; provided that for orders for which purchasers pay Zenfolio as your agent, Zenfolio shall provide reasonable assistance regarding any payment issues. You agree that you shall list active, correct support information for you (not Zenfolio) on your Photographer Site, and that you will timely respond to customer support inquiries. To the extent you have issues regarding your Photographer Account, please contact us at [email protected] so that we may address your concerns directly.
GDPR Compliance: This GDPR Compliance section (the “ADPL Provisions”) applies to you if you establish a Photographer Site and are subject to Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the “General Data Protection Regulation” or “GDPR”) (collectively, “Applicable Data Protection Law” or “ADPL”). The terms “controller”, “processor”, “data subject”, “personal data”, “processing”, “process”, and “subprocessor” shall have the meanings given in the ADPL.
Personal Data: You acknowledge that the Photographer Services are designed and provided for the primary purpose of enabling you to exhibit, organize, print, sell, exchange, and share digital images, videos and related products, and not for the primary purpose of storage, management or processing of sensitive personally identifiable information. Some personal data is required to provide and use the Photographer Services, such as email address, payment information, password, and a user name, and other similar non-sensitive personal information may be entered by you or visitors to your Photographer Site in the form of orders, posts, blogs, electronic communications, and other Photographer Site Content.
Processing: You expressly acknowledge that: (i) you are the controller of personal data included in the Photographer Site Content; (ii) You hereby appoint Zenfolio as a processor to process the personal data included in the Photographer Site Content; (iii) Zenfolio shall process personal data as a processor as necessary to perform its obligations under these Terms and strictly in accordance with your instructions as documented in these Terms, except where otherwise required by any applicable law; and, Zenfolio shall comply with Applicable Data Protection Law in its processing of personal data of European Economic Area (“EEA”) data subjects.
Limitations: You acknowledge and agree that Photographer Site Features give you, not Zenfolio, control over access, additions, deletions, modifications and monitoring of personal data and that, accordingly: (i) the core activities of Zenfolio do not involve any monitoring of a data subject; and (ii) Zenfolio does not have actual knowledge of the types of personal data that you may host using the Photographer Services. Hence, the provisions of Article 11 of the GDPR apply to the processing conducted by Zenfolio; and (ii) Zenfolio does not have to appoint a data protection officer as referenced in Article 37 of the GDPR or a representative in the European Union (“EU”) pursuant to Article 27(2)(a) of the GDPR.
Transfers: You represent and warrant that: (i) you have obtained all consents, and have all necessary rights, to transfer personal data of European Economic Area (“EEA”) data subject outside of the EEA as part of Photographer Services and in compliance with ADPL.
Confidentiality: Zenfolio shall require that any sub-processor or individual that access to personal data is subject to a strict duty of confidentiality, and prohibited from using the personal data for any purpose other than providing the Photographer Services.
Sub-processors & Payment Processors: To the extent necessary for Zenfolio fulfill its contractual obligations under these Terms, you hereby authorize Zenfolio to engage sub-processors identified on Zenfolio’s list of sub-processors at the end of this document (the “Sub-processor List”). .Zenfolio will notify applicable Photographers of any changes to such list by updating the Sub-Processors List and will give them the opportunity to object to the engagement of the new sub-processor on reasonable grounds relating to the protection of personal data within 30 days after updating the Sub-Processors List. If the Photographer does notify Zenfolio of such an objection, the parties will discuss Photographer’s concerns in good faith with a view to achieving a commercially reasonable resolution. If no such resolution can be reached, Zenfolio will, at its sole discretion, either not appoint the new sub-processor, or permit the Photographer to suspend or terminate the affected Services in accordance with the termination provisions of these Terms.
Technical and Organizational Measures: Zenfolio takes appropriate technical and organizational measures for its own systems to comply with data privacy in order to ensure a level of data protection appropriate to the risk resulting from the processing of personal data under these Terms, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing, as well as the severity and likelihood of realization of risks for the rights and freedoms of data subjects.
Rights of EEA Data Subjects: Zenfolio shall provide reasonable and timely assistance to you to respond to any request from an EEA data subject for the correction, updating, or deletion of the EEA data subject’s personal data. Zenfolio shall follow only your instructions in this regard. You hereby instructs Zenfolio to delete all personal data, to the extent technically feasible, that has been deleted at the data subject’s request from third party social media web sites from whom Zenfolio has obtained the personal data.
Data Impact Assessments: If Zenfolio believes that its processing of any EEA personal data is likely to result in a high risk to the data protection rights and freedoms of EEA data subjects, it shall promptly inform you and provide you with all such reasonable and timely assistance necessary to conduct a data protection impact assessment, and if necessary, consult with its relevant data protection authority.
Audit: At your sole cost and expense, and subject to your compliance with these Terms, including the ADPL Provisions, you may audit Zenfolio’s compliance with its obligations under these ADPL Provisions up to once per year and upon at least 14 days advance written notice to Zenfolio, with such notice to include a detailed proposed audit plan; provided that to the extent required by the GDPR or applicable law, you or the relevant data protection authority may perform more frequent audits. The proposed audit plan must describe the proposed scope, duration, and start date of the audit. Zenfolio will review the proposed audit plan and provide you with any concerns or questions and work cooperatively with you to agree on a final audit plan. Zenfolio will contribute to such audits by providing the information and assistance reasonably necessary to conduct the audit, including any relevant records of processing activities applicable to your use of the Photographer Services where such records are not otherwise available to you through the Photographer Services. The audit must be conducted during regular business hours, may not unreasonably interfere with Zenfolio business activities, and be conducted subject to the agreed final audit plan and Zenfolio’s or the applicable sub processors’ internal policies. You will provide Zenfolio any audit reports generated as part of any audit under paragraph unless prohibited by ADPL or the applicable data protection authority. You may use the audit reports only for the purposes of meeting your regulatory audit requirements and/or confirming compliance with the requirements of these ADPL Provisions. The audit reports are confidential information of the parties under these Terms. Where assistance requested of Zenfolio in conjunction with such audit requires the use of resources different from or in addition to those required of Zenfolio under these Terms, you shall pay for such additional resources at Zenfolio’s then-current rates.
Liabilities: Liability of the parties under these ADPL Provisions is governed by these Terms, provided that except for the intentional misconduct of Zenfolio, you shall defend, indemnify and hold harmless Zenfolio Parties, and their authorized distributors and resellers, from and against any and all claims, losses, liabilities, damages, penalties, fines, costs and expenses (including reasonable attorneys’ fees and costs) arising out of these ADPL Provisions. This paragraph controls in the event of any conflict between this paragraph and any other provision of these Terms or any other document.
Additional Requirements: By selling videos through your Photographer Site, you agree to the licensing terms of the AVC/H.264 License Agreement (https://www.mpegla.com/main/programs/AVC/Pages/Agreement.aspx). If you upload and/or sell videos in excess of 12 minutes in length, you may owe royalty payments to MPEG-LA. In addition to any other indemnity obligations described in these Terms, you will indemnify Zenfolio against royalties or any other liabilities arising under the AVC/H.264 License Agreement related to your uploads and/or sales of videos.
You are responsible for obtaining permission and proper release documentation from any person whose image is posted by you on Zenfolio, and you represent and warrant to Zenfolio that you have done so. While Zenfolio has the right to refuse or remove any material or activities on the Site in its sole discretion, Zenfolio specifically reserves the right to delete any images where Zenfolio, in its sole judgment, lacks confidence in the documentation of a release.
By using Photographer Services you agree to not publicly share, post or redistribute MpixPro product, shipping or service prices and details.
If you are making a purchase on or through the Site, this section applies to you.
As a purchaser of products through the Site, you acknowledge that physical products purchased through the Site are purchased for personal use only and are custom made to your order and have no market beyond your purchase thereof. You may not reproduce, scan, display, transmit, distribute, modify, alter or otherwise exploit the physical products, or any portion thereof, for commercial use, in any manner, without the prior written consent of the photographer.
You acknowledge that products (including digital products) purchased through the Site are purchased subject to the terms set forth by the photographer in a separate digital product license, and the acquisition of a copy of a work (digital or not) does not itself convey any rights under copyright or other laws to exploit the work.
To the extent permissible by law, all items purchased through Zenfolio and shipped to you are subject to a shipment contract under which the risk of loss and title for such items pass to you upon Zenfolio’s or the photographer’s delivery to a shipping carrier.
Intellectual Property Rights
Services Content, Software and Trademarks: You acknowledge and agree that the Services may contain content or features (“Services Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Zenfolio, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Services Content, in whole or in part, except that the foregoing does not apply to your own content that you legally upload to the Services. In connection with your use of the Services you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Zenfolio from accessing the Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Services or the Services Content other than as specifically authorized herein is strictly prohibited.
The Zenfolio name and logos are trademarks and Services marks of Zenfolio (collectively the “Zenfolio Trademarks”). Other company, product, and Services names and logos used and displayed via the Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Zenfolio. Nothing in this Terms of Service or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Zenfolio Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of Zenfolio Trademarks will inure to our exclusive benefit.
Third Party Content: Under no circumstances will Zenfolio Parties be liable in any way for any content or materials of any third parties (including participants) or for the creation of any facial recognition data as generated from tools utilized by Photographers or for hosting and use of such data as implemented by Photographers, including, but not limited to, for any errors or omissions in any content, any loss or damage of any kind incurred as a result of the use of any such content, or personal injury, death or property damage that may result from your use of the Services. You acknowledge that Zenfolio does not pre-screen content, but that Zenfolio and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Services. Without limiting the foregoing, Zenfolio and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Zenfolio, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
Copyright Complaints: Zenfolio respects the intellectual property of others, and we ask our participants to do the same. However, Zenfolio is not in a position to determine copyright status of any content uploaded to the Site, which may depend upon many facts that are unknown to Zenfolio. Zenfolio makes no representations or warranties as to the accuracy, correctness or reliability of the content posted on the Site or sold by photographers. Zenfolio cannot and does not ensure that all persons depicted in the photographs and trademark owners have consented to the display of their image or trademark therein or on the Site. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Zenfolio of your infringement claim in accordance with Zenfolio’s Copyright Policy.
Counter-Notice: If you believe that your Photographer Site Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the Photographer Site Content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within California, California and a statement that you will accept Services of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Zenfolio will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider or participant, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the Digital Millennium Copyright Act and other applicable law, in appropriate circumstances and at Zenfolio’s sole discretion, Zenfolio may terminate accounts of participants who are deemed to be repeat infringers. Zenfolio may also at its sole discretion limit access to the Services and/or terminate the accounts of any participants who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Third Party Websites
The Services may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Zenfolio has no control over such sites and resources and Zenfolio is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Zenfolio will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Services are between you and the third party, and you agree that Zenfolio is not liable for any loss or claim that you may have against any such third party.
Indemnity and Release
You agree 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 your use of the Services, any content you upload to the Services, your connection to the Services, your violation of these Terms of Service, your violation of any rights of another, or your violation of applicable law. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a direct result of any action or inaction of such Indemnitee. If you are a California resident, you waive 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 you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE 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 SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT ZENFOLIO 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 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 SERVICES; (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 YOUR CONTENT OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT WILL ZENFOLIO PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED ONE HUNDRED DOLLARS ($100) WITH RESPECT TO END USER SERVICES, OR THE AMOUNT OF SIX (6) MONTHS OF YOUR OF SUBSCRIPTION FEES FOR PHOTOGRAPHER SERVICES.
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 YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.”
If you have a dispute regarding these Terms, you 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 your name and contact information, a written explanation of the claim including all legal claims you intend to assert and each set of facts which support each of such claims, and the relief you’re requesting. You agree that if any of your claims are omitted from that notice, you forever waive those claims and covenant not to assert them in any action or proceeding related to these Terms. We will attempt to resolve the dispute with you 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 these Terms (including but not limited to this “Dispute Resolution” Section) shall be resolved by binding arbitration before a sole arbitrator, except that you may assert claims in small claims court if your claims qualify and Zenfolio may pursue a collection action against you 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.
You 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 you 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 you 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. You 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. You or Zenfolio may initiate arbitration in either San Mateo County, California, or the federal judicial district where you reside. 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.
YOU 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 YOUR ORIGINAL ACCEPTANCE OF THE ZENFOLIO TOS WITH THIS PROVISION INCLUDED. IF YOU DO NOT SEND NOTICE AS REQUIRED IN THE FOREGOING SENTENCE, YOU WILL NOT HAVE OPTED OUT OF ARBITRATION. IF YOU OPT OUT OF ARBITRATION AS PROVIDED ABOVE, THE OTHER PROVISIONS OF THESE TERMS SHALL STILL APPLY.
Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation, this section.
You may terminate your account for Photographer Services on ten (10) days written notice to Zenfolio. You agree that Zenfolio, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Services and remove and discard any content within the Services, for any reason, including, without limitation, for lack of use or if Zenfolio believes that you 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 your use of Services, may be referred to appropriate law enforcement authorities. Zenfolio may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Services under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Zenfolio may immediately deactivate or delete your account and all related information and files associated with your use of the Services and/or bar any further access to such files or the Services. Further, you agree that Zenfolio Parties will not be liable to you or any third party for any termination of your access to the Services. provided that Zenfolio will pay a pro-rata refund if it terminates your access to the Services without cause. Except as stated in the foregoing sentence, no refunds shall be payable for cancelation or termination of your accounts with the Services.
Upon termination or expiration of an account for Photographer Services, you will be notified of the option to request your preferred method of payout. If you specify a preferred method of payout, your Photographer Services account balance will be paid out to you (subject to a $5.00 processing fee for bank check payouts). Courtesy credits or referral credits are forfeited at the time of account closure and are not paid out. If you fail to specify a preferred method of payout at the time of account closure, Zenfolio may assess a processing fee in connection with any subsequent Zenfolio efforts to resolve your account balance.
Upon termination or expiration of your account, Zenfolio has no obligation to provide you with a copy of your Photographer Content and may delete your Photographer Content from the Zenfolio servers without liability to you.
Disputes; Licenses between Photographers and End Users
You agree that you are solely responsible for your interactions with any other participant in connection with the Services and Zenfolio will have no liability or responsibility with respect thereto. Zenfolio reserves the right, but has no obligation, to become involved in any way with disputes between you and any other participant of the Services.
As part of Photographer Services, the photographer may sell products to end users and may impose license restrictions on them. Any end user license or agreement between a photographer and a purchaser is the sole responsibility of the parties. IF YOU ARE THE PHOTOGRAPHER OR THE END USER PURCHASER, IT IS YOUR SOLE RESPONSIBILITY TO REVIEW AND UNDERSTAND THE TERMS OF ANY SUCH END USER LICENSE. YOU ACKNOWLEDGE AND AGREE THAT ZENFOLIO PARTIES SHALL NOT HAVE ANY LIABILITY TO YOU ARISING OUT OF OR RELATED TO ANY SUCH END USER LICENSES. IF YOU ARE A PHOTOGRAPHER AND YOU ELECT TO USE ONE OR MORE FORMS OF END USER LICENSE AGREEMENT MADE AVAILABLE BY ZENFOLIO, YOU ACKNOWLEDGE AND AGREE THAT: (I) SUCH FORMS ARE PROVIDED FOR EDUCATIONAL PURPOSES ONLY; (II) ZENFOLIO DOES NOT OFFER OR PROVIDE LEGAL ADVICE, LEGAL REPRESENTATION OR LEGAL OPINIONS; (III) YOU SHOULD CONSULT A LICENSED ATTORNEY FOR ANY LEGAL ADVICE ON ANY SUBJECT MATTER INCLUDED IN ANY OF SUCH END USER LICENSES MADE AVAILABLE TO YOU; AND (IV) ANY RELIANCE ON THE FORM LICENSE AGREEMENTS MADE AVAILABLE THROUGH ZENFOLIO IS AT YOUR OWN RISK AND WITHOUT WARRANTY OF ANY KIND BY ZENFOLIO, WHETHER EXPRESS OR IMPLIED. YOU ACKNOWLEDGE AND AGREE THAT ALL END USER LICENSES FOR DIGITAL PRODUCTS BETWEEN YOU AND AN END USER PURCHASER OR BETWEEN YOU AND A PHOTOGRAPHER ARE ENTERED INTO AT YOUR OWN RISK.
These Terms of Service constitute the entire agreement between you and Zenfolio and govern your use of the Services, superseding any prior agreements between you and Zenfolio with respect to the Services. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service 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, you 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 these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree 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 Services or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of these Terms of Service and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating thereto to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without the prior written consent of Zenfolio, but Zenfolio may assign or transfer this Terms of Service in whole or in part, without restriction. Zenfolio Parties shall not have any liability to you for any or be deemed to be in default, for any delay or failure to perform any act under these Terms of Service 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 these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Services may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Services.
Notice for California Participants
Under California Civil Code Section 1789.3, participants of the Services from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services 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.
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Amazon Web Services
Zenfolio® BookMe Addendum
The Service enables Photographers and their customers (“Customers”) to easily arrange photoshoots and arrange for payment through third-party payment platforms. To process photoshoot payments using Stripe, Photographers must have established an account with Stripe, as provided in the Standard Terms. Photographers may use alternate payment providers, but must establish their own relationships with those alternative payment providers.
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 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), Zenfolio needs your express consent 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.
PHOTOGRAPHERS AND CUSTOMERS ACKNOWLEDGE AND AGREE THAT WHILE THE SERVICE FACILITATES PHOTOSHOOTS BETWEEN PHOTOGRAPHERS AND CUSTOMERS, ZENFOLIO IS NOT A PARTY TO ANY AGREEMENT BETWEEN PHOTOGRAPHERS AND CUSTOMERS, ZENFOLIO DOES NOT MANAGE PAYMENTS FOR PHOTOSHOOTS, AND ZENFOLIO HAS NO CONTROL OVER THE CONDUCT OF PHOTOGRAPHERS OR CUSTOMERS, SO ZENFOLIO 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 OR FOR ANY PAYMENTS PAID OR PAYABLE FOR SUCH PHOTOSHOOTS.
NOTICE REGARDING MESSAGES FOR BOOKME: BY ACCEPTING THIS ADDENDUM, YOU AGREE AND HEREBY PROVIDE YOUR CONSENT, THAT ZENFOLIO MAY CONTACT YOU BY EMAIL AND SMS REGARDING APPOINTMENTS MADE THROUGH BOOKME. FOR EMAIL MESSAGES SENT TO YOUR EMAIL ADDRESS, YOU MAY OPT OUT OF RECEIVING THEM AS PROVIDED IN THOSE EMAILS. FOR SMS COMMUNICATIONS TO YOUR WIRELESS PHONE NUMBER, YOU MAY OPT OUT OF RECEIVING THOSE MESSAGES BY FOLLOWING ACCOMPANYING INSTRUCTIONS OR OTHERWISE BY CONTACTING ZENFOLIO SUPPORT AT [email protected] WITH YOUR SPECIFIC OPT OUT REQUEST. FOR THE PURPOSES OF THIS PARAGRAPH, REFERENCE TO “SMS” SHALL MEAN BOTH SMS AND MMS MESSAGES.
Participation: To use the Service, the Photographer must first purchase a subscription, which is nonrefundable. Photographers can then use the mechanisms made available by Zenfolio to provide information regarding the types of photoshoots offered, geographic travel radius for photoshoots, and pricing information for photoshoots. Some information may be imported based on the information you’ve already provided to Zenfolio as part of Photographer Services. Further, depending on the version of the Service made available by Zenfolio, a Photographer may be able to enable Google calendar synchronization through features of the Service, and by doing so, the Photographer is granting Zenfolio the right to utilize the Photographer’s access credentials to import calendar information and to publish imported information available through the Service. CERTAIN SUBSCRIPTIONS MAY OFFER A TRIAL PERIOD AT A DISCOUNTED RATE AND, AT THE END OF THE TRIAL PERIOD, THE SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR THE SUBSCRIPTION PERIOD YOU’VE SELECTED AT THE STANDARD RATE FOR THAT SUBSCRIPTION PERIOD UNLESS THE TRIAL SUBSCRIPTION IS CANCELED PRIOR TO THE END OF THE TRIAL. TO AVOID RENEWAL AFTER THE TRIAL AND TO AVOID BEING CHARGED THE STANDARD RATE UPON RENEWAL, YOU MUST CANCEL THE SUBSCRIPTION BEFORE THE TRIAL PERIOD ENDS.
Scheduling, Pricing & Delivery: While the Service may provide mechanisms for Customers to book photoshoots with Photographers and for Photographers to select pricing, the scheduling and pricing of photoshoots, any photoshoot cancelations or modifications, the delivery of photos to Customers, and any refund policies shall be as agreed upon by the Customer and the Photographer.
Fees & Payments from Customers: The Service allows for Customers to be charged the fees for photoshoots, plus applicable taxes (if any), at the time of making the booking using the Photographer’s chosen payment method. Photographers are solely responsible for managing their relationship with the payment method provider and for any payments, refunds, chargebacks and/or credits involving Customers engaged through the Service. You agree that you will maintain an active credit card associated with your account (both with Zenfolio and the payment method provider) in order to utilize the Service. You represent and warrant that you will be responsible for all refunds, chargebacks and/or credits. Further, you agree; (i) that, should the Photographer fail to honor any refunds, chargebacks and/or credits requested by the Customer, Zenfolio may charge that Photographer’s credit card for such amounts to the extent Zenfolio is charged for, or honors, the same; and (ii) to indemnify, defend and hold harmless Zenfolio Parties from and against all losses, liabilities, damages, costs and expenses, including but not limited to reasonable attorneys’ fees and costs, arising from failure to property issue any refunds and/or credits.
Service Requirements: Photographers acknowledge and agree that the Service is only an online venue for Photographers and Customers. Any agreements reached by and between Photographers and Customers are solely among such parties. The Service is a tool to allow Photographers and Customers to arrange bookings and Zenfolio is not a party to any transaction for any photoshoot or booking, 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, Zenfolio Parties: (i) make no promises, warranties, or representations with respect to Customers or any third parties; (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 Customers in connection with Service.