Date of Last Revision: January 9, 2023
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 “Photographer”) 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 such other related services as may be offered through the Site from time to time. These services offered by Zenfolio and utilized by you are referred to collectively as the “Services.”
These Terms contains certain provisions that are applicable only if you are located in, or you offer End User Services to individuals within, the United Kingdom (Section 34 “Jurisdiction Specific Terms”). In the event of a conflict between the Jurisdiction Specific Terms, and any other terms or conditions set forth in these Terms, the Jurisdiction Specific Terms shall supersede and control with respect to such conflict.
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.
1. NOTICE REGARDING MESSAGES FROM ZENFOLIO. WITHOUT PREJUDICE TO SECTION 34 WHERE YOU ARE LOCATED IN THE UNITED KINGDOM, 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, SOFTWARE, 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.
2. 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. SUBJECT TO SECTION 34 WHERE YOU ARE LOCATED IN THE UNITED KINGDOM, 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.
3. Access and Use of the Service
3.1. Zenfolio Guidelines. You must comply with all of our Photographer user guidelines and policies, as adopted and published on the Site from time to time, and which are incorporated herein by reference.
3.3. 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. Without prejudice to Section 34 where you are located in the United Kingdom, Zenfolio will not be liable for any loss or damage arising from your failure to comply with this paragraph.
3.4. Modifications to Services. Zenfolio reserves the right to modify or discontinue, temporarily or permanently, the Software and Services (or any part thereof) with or without notice. Without prejudice to Section 34 where you are located in the United Kingdom, you agree that Zenfolio will not be liable to you or to any third party for any modification, suspension or discontinuance of the Software or Services.
3.5. Storage Limits; General Practices Regarding Use. You acknowledge and agree that: (a) storage capacity is limited based on the type of account you have purchased; (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; (c) 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 (d) 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.
3.6. 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. WITHOUT PREJUDICE TO SECTION 34 WHERE YOU ARE LOCATED IN THE UNITED KINGDOM, 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, SOFTWARE, AND SERVICES, AND ABOUT ANY APPOINTMENTS OR MATTERS RELATING TO THE SERVICES YOU UTILIZE.
3.7. License to Use the Services and Software. Subject to your compliance with 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. IF YOU ARE IN THE UNITED KINGDOM, THE SOFTWARE IS PROTECTED BY THE COPYRIGHT, DESIGNS AND PATENTS ACT 1988.
3.8. Software Installation. In the event Zenfolio provides you Software to use the Services, you may install, use, and run one copy of the Software on up to three computer(s) at a time/on your network for use by up to three authorized users (unless otherwise agreed to by Zenfolio or otherwise set forth in an order form between you and Zenfolio). Upon request from Zenfolio, you shall promptly (and within 72 hours) provide written notice to Zenfolio of the name and contact information of each such authorized user, and of any individual who was, but is no longer an authorized user during the previous calendar year. The total number of authorized users shall not exceed ten or otherwise set forth in an order form between you and Zenfolio, except as expressly agreed to in writing by Zenfolio and subject to any appropriate adjustment of the license and Service fees payable hereunder. You may make one copy of the Software solely for testing, disaster recovery, or archival purposes. Any copy of the Software made by you: (i) will remain the exclusive property of Zenfolio; (ii) be subject to the terms and conditions of these Terms; and (iii) must include all copyright or other intellectual property rights notices contained in the original.
3.9. Additional Software Terms. Zenfolio may require you or offer you the ability to download and install Software to use certain Services or certain Service features, and you hereby agree to use such Software in accordance with these Terms, including Sections 3.7-3.13, and any terms, policies, or addendum attached hereto or referenced or incorporated herein. Where applicable, Zenfolio shall deliver one copy of such Software electronically, on tangible media, or by other means, in Zenfolio’s sole discretion, to you in a reasonable timely manner. Risk of loss of any tangible media on which the Software is delivered will pass to you on delivery to carrier. Unless otherwise expressly agreed to by Zenfolio (including as agreed to in these Terms), you shall not, and shall not permit any other third-party to: (i)copy the Software, in whole or in part; (ii)modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Software; (iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software to any third party; (iv)reverse engineer, disassemble, decompile, decode, or adapt the Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (v) bypass or breach any security device or protection used for or contained in the Software or applicable Software documentation; (vi) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the Software documentation, warranties, disclaimers, or intellectual property rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Software or Software documentation; (vii) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (viii) use the Software for purposes of: (a) benchmarking or competitive analysis of the Software; (b) developing, using, or providing a competing software product or service; or (c) any other purpose that is to Zenfolio’s detriment or commercial disadvantage; (ix) use the Software in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage; or (x) use the Software or Software documentation other than to access and use permitted Services.
3.11. Maintenance Releases. Zenfolio may, from time to time, provide you with updates, upgrades, releases, or other adaptations or modifications of the Software (“Maintenance Releases”) that Zenfolio may, in its sole discretion, make generally available at no additional charge. All Maintenance Releases provided by Zenfolio are deemed Software. You will install all Maintenance Releases as soon as practicable after receipt (and in any event within 24 hours). You do not have any right hereunder to receive any “New Versions” of the Software that Zenfolio may, in its sole discretion, release from time to time. Upon Zenfolio’s approval, you may license any New Version at Zenfolio’s then-current list price and subject to a separate license agreement, provided that you are in compliance with these Terms. The term “New Version” means any new version of the Software that Zenfolio may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Zenfolio’s designation of a new version number), and which Zenfolio may make available to you at an additional cost under a separate written agreement.
3.12. Notice and Assistance. You shall, (i) take all measures to safeguard the Software and the Software documentation (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access; (ii) at Zenfolio’s expense, take all such steps as Zenfolio may reasonably require to assist Zenfolio in maintaining the validity, enforceability and Zenfolio’s ownership of the intellectual property rights in the Software and the Software documentation; (iii) promptly notify Zenfolio in writing if you become aware of: (a) any actual or suspected infringement, misappropriation or other violation of Zenfolio’s intellectual property rights in or relating to the Software or the Software documentation; or (b) any claim that the Software or the Software documentation, including any production, use, marketing, sale or other disposition of the Software or the Software documentation, in whole or in part, infringes, misappropriates or otherwise violates the intellectual property rights or other rights of any person; and (iv) fully cooperate with and assist Zenfolio in all reasonable ways in the conduct of any legal action or process by Zenfolio to prevent or abate any actual or threatened infringement, misappropriation or violation of Zenfolio’s rights in, and to attempt to resolve any such legal action or process relating to, the Software or the Software documentation, including having your employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.
3.13. Third-Party Products. You acknowledges that use of certain Services and Software may require the installation of certain software components owned or licensed by Zenfolio from a third-party (collectively “Third Party Software”) or that are subject to an open source license agreement, including components available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative (“Open Source Software” and collectively with Third Party Software, the “Third Party Products”). Any use of Third Party Products by you shall be solely governed by the terms and conditions of the applicable Third Party Software license or Open Source Software license and not these Terms, which shall be set forth in the readme or about files of the Services and Software or otherwise made available by Zenfolio. You hereby agree to comply with any additional terms and conditions applicable to the Third Party Products.
4. Conditions of Use
4.1. 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 TERMS ALONG WITH OTHER RELEVANT PROVISIONS IN THIS TERMS OF SERVICE.
4.2. Content and 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;
- 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.
4.3. 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.
4.4. 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.
5. Social Networking
5.2. In addition, Zenfolio 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, Zenfolio 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. Zenfolio enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
6. Facial Recognition Tools; Liability and Waivers
6.1. From time to time Zenfolio may make available facial recognition tools to enable Photographers to organize images in the Photographer’s photo galleries. The facial recognition tools capture and process biometric data (e.g., scans of facial geometry, retina or iris scans) with respect to individuals in the images. WITHOUT PREJUDICE TO SECTION 34 WHERE YOU ARE LOCATED IN THE UNITED KINGDOM, 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, OR OFFERING END USER SERVICES WITHIN, THE STATE OF ILLINOIS, (II) NOT USE SUCH TOOLS WITH ANY IMAGES DEPICTING RESIDENTS OR CITIZENS OF THE STATE OF ILLINOIS; (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, PROVIDE NOTICE (INCLUDING PUBLIC NOTICE, WHERE APPLICABLE) TO AND OBTAIN CONSENT FROM THE PHOTOGRAPHER’S CUSTOMERS AND OTHERS (OR THEIR LEGAL GUARDIANS) 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. 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, Photographer acknowledges and agrees, and Photographer shall be responsible for ensuring that a Photographer’s customers 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.
6.2. Zenfolio Parties have implemented commercially reasonable protocols to safeguard and, when appropriate, to permanently delete or dispose of images subject to the facial recognition features. Photographers acknowledge and agree that Zenfolio Parties may disclose and disseminate images subject to the facial recognition features to third parties in accordance with the confidentiality and data protection terms herein and the Zenfolio Data Processing Addendum. Photographers further instruct Zenfolio Parties to delete images subject to the facial recognition features from their custody or control when it has been more than three (3) years since the last interaction by the Photographers with Zenfolio.
6.3. Photographer hereby agrees, and shall ensure that Photographer’s customers and visitors to a Photographer Site acknowledge and agree (in writing), to the following disclaimer and waiver of liability:
YOU ACKNOWLEDGE AND AGREE THAT THE PHOTOGRAPHER IS SOLELY RESPONSIBLE FOR ANY IMAGE, CONTENT, DATA, TEXT, OR OTHER MATERIALS DISPLAYED ON THIS WEBSITE OR OTHERWISE MADE AVAILABLE, AND FOR THE MANAGEMENT OF THE SAME, INCLUDING BUT NOT LIMITED TO 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 (I) ANY IMAGES, CONTENT, TEXT, OR OTHER MATERIALS, OR SUCH OTHER CONTENT, DATA OR INFORMATION MADE AVAILABLE THROUGH THIS WEBSITE OR GENERATED BY A PHOTOGRAPHER’S USE OF FEATURES OR TOOLS MADE AVAILABLE BY ZENFOLIO, OR (II) ANY ACTION OR FAILURE TO ACT BY A PHOTOGRAPHER WITH RESPECT TO THE FOREGOING.
7. Photographer Services Terms. If you subscribe to Photographer Services, this Section applies to you.
7.1. Subscription Period and Subscription Fees. The subscription period for Photographer Services (including Software) can be month-to-month, yearly, or another duration described in the account features for your account (“Subscription Period”). Accounts for Photographer Services and Software 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. Subject to Section 34 where you are located in the United Kingdom, 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.
7.2. 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. Without prejudice to Section 34 where you are located in the United Kingdom, 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 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.
7.3. 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.
7.4. Account Upgrades and Downgrades. (A) 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. (B) 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. 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.
9. 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”), the UK Data Protection Legislation where you are in the UK and / or you provide photographic services to schools and/or youth programs in the UK 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.
10. Availability. Subject to the terms and conditions of these Terms, 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.
11. 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. If the Photographer Site is made publicly available by the Photographer, then Photographer acknowledges and agrees that filenames of images and videos may be identified in html code for the Photographer Site and the Photographer is solely responsible for using filenames that conform to the requirements of these Terms and applicable law.
12. Submissions. 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.
13. Photographer Accounts. While payments from purchases 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, or bank check, 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.
14. Student Plans. Student Plans are open to full-time students in the US, age 18 or older, studying photography through a high school program, community college, college or university, or a continuing educational course or program, or online course. Zenfolio reserves the right to disqualify participants who do not meet those criteria. If the account is not active in a six-month period, Zenfolio reserves the right to close the account. Student Offers may not be assigned, exchanged, sold, transferred or combined with any other discount or offer, or redeemed for cash or other goods and services. Student plans and student pricing are subject to change without notice. Void where prohibited, taxed or restricted by law. Zenfolio has the unlimited right to alter, extend, eliminate or discontinue this offer and/or program in its sole discretion.
15. 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 $15.00 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 (e.g., United Kingdom), 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.
16. 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.
17. 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.
18. Data Protection. In the event your Photographer Site Content contains “personal data,” the parties hereby agree to comply with the Zenfolio Data Processing Addendum, which is hereby incorporated into, and forms an integral part of, these Terms.
19. Purchase Terms. Photographer hereby agrees, and shall ensure that Customers of Photographers and visitors to a Photographer Sites acknowledge and agree (in writing), to the following disclaimer and provisions set forth herein:
You acknowledge and agree 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 applicable Photographer. You acknowledge and agree that products (including digital products) purchased through the Site are purchased subject to the terms and conditions set forth by the applicable Photographer, 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 on the Site or 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 applicable Photographer’s delivery to a shipping carrier.
20. Intellectual Property Rights
20.1. Services Content, Software and Trademarks You acknowledge and agree that the Services and Software 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 or Software (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 or Software 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 or Software 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.
20.2. 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.
20.3. 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 the applicable 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.
20.4. 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: (i) your physical or electronic signature; (ii) 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; (iii) 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 (iv) 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.
20.5. 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.
21. 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.
22. Indemnity and Release. Without prejudice to Section 34 where you are based in the United Kingdom, 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 and/or Software, any content you upload to the Services, your connection to the Services and/or Software, 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 grossly negligent 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.
23. Disclaimer of Warranties. YOUR USE OF THE SERVICES AND SOFTWARE IS AT YOUR SOLE RISK. THE SERVICES AND SOFTWARE 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 AND SOFTWARE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES AND SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE SERVICES AND SOFTWARE, OR THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES AND SOFTWARE 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, (V) THE SERVICES AND SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR WILL BE FREE OF HARMFUL CODE OR SECURITY VULNERABILITIES; (VI) THE SERVICES AND SOFTWARE DO NOT INFRINGE UPON ANY INTELLECTUAL PROPERTY RIGHTS.
24. Limitation of Liability. WITHOUT PREJUDICE TO SECTION 34 WHERE YOU ARE IN THE UNITED KINGDOM, 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 OR SOFTWARE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, SOFTWARE OR SERVICES PURCHASED OR OBTAINED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE OR SOFTWARE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES OR SOFTWARE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES OR SOFTWARE. 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.
25. Dispute Resolution By Binding Arbitration.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
25.1. 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.
25.2. 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.
25.3. 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.
25.4. 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.
26. Termination. 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, immediately and 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 Zenfolio account, Zenfolio shall delete your Photographer Content (including personal data therein) from the Zenfolio’s custody and control, and it is your responsibility to retain any copies of the foregoing prior to such termination or expiration.
27. Disputes; Licenses between Photographers and End Users. You agree that you are solely responsible for your interactions with any other participant (including your customers) 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 (including Photographer’s customers). As part of Photographer Services, you may sell products to customers and end users and may impose license restrictions on them. Any such license or agreement between you 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.
30. General. 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. Without prejudice to Section 34 where you are in the United Kingdom, 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.
31. 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.
32. Videos. By selling videos through your Photographer Site, you agree to the licensing terms of the AVC/H.264 License Agreement (https://www.mpegla.com/programs/avc-h-264/license-agreement/). 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.
33. Additional Terms: Zenfolio® BookMe Addendum
33.2. 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.
33.3. 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 these Terms, 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.
33.4. 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.
33.5. Photographer 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. To the extent this information constitutes personal data, the terms of the Zenfolio Data Processing Addendum will apply to such information. 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.
33.6. 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.
33.7. 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.
33.9. 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.
33.10. Zenfolio Guidelines. Photographer must comply with all of our guidelines and policies, as adopted and published by the Zenfolio from time to time, and which are incorporated herein by reference.
33.11. Modifications to Service. Zenfolio reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. In such circumstances, Zenfolio will reimburse Photographer for any unused portions of the Services to which it has already submitted payment to Zenfolio.
34. Jurisdiction Specific Terms
34.1. In the event you are located in, or you offer End User Services to individuals within, the United Kingdom, these Jurisdiction Specific Terms shall apply.
34.2. You are the controller of any personal data processed about customers of the End User Services. Zenfolio is processor. Each of us shall comply with the applicable provisions of the UK Data Protection Legislation, together with the Zenfolio Data Processing Addendum.
34.4. On the basis that you are a customer of Zenfolio, Zenfolio may send you marketing messages about your account and/or subscription and about Zenfolio’s products and services on the grounds of Zenfolio’s legitimate interests in promoting its business and products.
34.5. If you choose to collect biometric data as a result of providing the End User Services, you shall do so in accordance with the Zenfolio Data Processing Addendum. In particular, you acknowledge and agree that as controller of the biometric data you are solely responsible for ensuring you have consent from the data subjects to process their biometric data or that another ground set out in Article 9 of UK GDPR applies to the processing of biometric data.
34.6. Zenfolio may share and exchange data about the Photographer and the Photographer’s Stripe account with Stripe on the grounds of Zenfolio’s legitimate interests in ensuring all transactions and payments are correct and the Photographer’s account is up to date.
34.7. Section 23 (Disclaimer of Warranty) shall apply, unless, and only to the extent, prohibited by English law.
34.8. Section 24 (Limitation of Liability) shall not be interpreted to limit or exclude liability for personal injury or death caused by negligence, for fraud or fraudulent misrepresentation or for any other matter where limitation or exclusion is not permitted by law.
35. Notices and Questions. All notices and demands hereunder shall be in writing and shall be served by personal service. All notices or demands by mail shall be by certified or registered mail, return receipt requested, or by nationally-recognized private express courier and shall be deemed complete upon receipt. Any such written notice or demand by you to Zenfolio shall be submitted to Zenfolio, Inc., 3515 A Edison Way, Menlo Park CA 94025. Zenfolio may provide Photographer with notice at any shipping address or email address provided to Zenfolio during registration for the Services, unless Photographer provides written notice to Zenfolio specifying a different address where such notices shall be delivered.