General Terms and Conditions of GotPhoto for Studios Located in the United States
1.1 Parties and Agreement. These General Terms and Conditions (hereinafter referred to as the “Terms”) are a binding contract between GotPhoto Inc., 433 Broadway, New York, NY 10013, United States (“GotPhoto”) and its customers (“Studio”) with regard to the provision of online Services, as defined in Section 2.1 below, which assist Studios in offering and distributing their works and other services to their customers (“End Customers”). GotPhoto does not provide Services to End Customers, but exclusively to Studios for use in support of the Studio’s independent commercial or professional activities.
1.2 Arbitration Agreement and Class Action Waiver. These Terms contain an arbitration provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute. See Section 14 below for full details.
1.3 Entire Agreement. The Terms constitute the entire agreement between GotPhoto and Studio concerning Studio’s use of the Services. Studio’s terms and conditions—including those on Studio’s website or mobile application–do not bind GotPhoto unless GotPhoto has expressly agreed to their validity in writing. Agreements, in particular, verbal subsidiary agreements, commitments, guarantees and other assurances by GotPhoto’s employees, only become binding upon written confirmation by GotPhoto.
1.5 Eligibility. If Studio is an individual, Studio represents and warrants that they are at least 18 years of age and are otherwise legally qualified to enter into and form contracts under applicable law. If Studio is a business entity, Studio represents and warrants that its agent agreeing to these Terms is authorities to act and enter into contracts on behalf of that business entity.
2. Services from GotPhoto
2.1 Services. GotPhoto provides the Studio with an online platform, with the help of which the Studio (i) can present itself and its services as a Studio on the Internet with a subdomain chosen by it (in the form selectedsubdomain.gotphoto.com) or a top level domain registered and administered by itself (in either event, a “Web Presence”), and (ii) can offer and sell its photos online in the form of photo products (photographic prints, poster, printed mugs, etc.) or as digital image files (“Online Shop”). GotPhoto’s provision, through its platform, of technical services and support for Studio’s Web Presence and Online Shop are collectively referred to herein as the “Services.” GotPhoto acts as a pure technical service provider of the Studio. GotPhoto provides the Services to the Studio for the Studio’s own business purposes as a Studio in the exercise of its independent commercial or professional activities. The transfer of use of the Services to third parties is prohibited. Details of the Services purchased by a specific Studio depend upon the bundle of Services selected by Studio at the time of its purchase (in each event, Studio’s “Plan”) or as updated by Studio from time to time. GotPhoto owes the Studio only the provision of those Services which are included in the Studio’s current Plan.
2.2 Add-on Services. From time to time and at its discretion, GotPhoto may offer “Add-on Services” to Studios for a fee in addition to what is paid by the Studio for its Plan, such as Image Editing Services. Insofar as the Studio commissions image Editing Services, the “Special terms for commissioning image editing services ” (Section 13 below) shall apply. For all other Add-on Services, additional terms may apply, which shall be reviewed and agreed upon by the Studio prior to purchasing the same. Upon acceptance by Studio, the terms applicable to Add-on Services shall become part and parcel of these Terms.
2.3 Uptime. GotPhoto provides the Services to the Studio with an uptime availability of 97% on a monthly average during the operating period. Not included in the uptime calculation are maintenance windows (for example, installation of updates or upgrades) of up to 8 hours per calendar month announced by GotPhoto by e-mail. GotPhoto will notify the Studio of planned maintenance work in due time. GotPhoto shall be released from its obligation to create or maintain the accessibility of the Services if and to the extent that the connection is disrupted or fails due to circumstances beyond GotPhoto’s control and for which GotPhoto is not responsible (for example, due to a network failure at the respective internet service provider). As soon as GotPhoto becomes aware of such an interruption, GotPhoto shall inform the Studio thereof without delay in a suitable manner. The Studio undertakes to provide GotPhoto with contact details for this purpose and to keep GotPhoto up to date. When calculating the uptime actually achieved, failures of the Services due to force majeure (for example, strike, riots, natural disasters, epidemics) shall not be considered. Also disregarded are non-availabilities of the Services and blockages by GotPhoto, which GotPhoto may consider necessary for security reasons, provided that GotPhoto had taken reasonable precautions for the security of the service (e.g., denial of service attack, serious security vulnerability in a used third-party software without an available patch). The same applies to the installation of urgent security updates outside of scheduled maintenance windows, which is necessary to avoid significant disadvantages.
2.4 Changes. GotPhoto reserves the right to change the Services (including the system requirements) at its sole discretion. For example, such a change may occur if the change is necessary due to (i) adaptation to a new legal situation or jurisdiction, (ii) changed technical framework conditions (new browser versions or technical standards), or (iii) the protection of system security. In addition, GotPhoto may change the Services appropriately in the context of further development (e.g., deactivation of old functions, which have largely been replaced by new ones). If the change would significantly disturb the contractual balance between the parties, GotPhoto shall inform the Studio of the change as a rule at least thirty (30) days before it comes into force to give Studio an opportunity to assess the changes and cancel its Plan, if any.
3. Legal relationship with the End Customer
3.1 End Customer Relationship. The contractual partner of the End Customer is exclusively the Studio, who acts towards them in its own name and on its own account. This shall also apply to the sale of photographs in print form or as digital image files. The Studio is solely responsible for the arrangement of the legal relationship between the Studio and the End Customer. In this respect, the Studio shall be free to determine its conditions (pricing, general terms and conditions, etc.), but shall make the necessary agreements with the End Customer for the processing of payments in accordance with Section 7.2. Due to changes in payment processing (e.g., addition of new payment methods for End Customers), it may be necessary for the Studio to adjust its agreements with the End Customer accordingly.
3.2 Direct Services. If GotPhoto wishes to offer services to the Studio’s End Customers in the future in connection with the Online Shop, which require a direct customer relationship between GotPhoto and the End Customers, GotPhoto shall obtain the Studio’s consent in advance. This can be done in writing, by e-mail or via the online portal.
3.3 Sample documents; NO LEGAL ADVICE. Insofar as GotPhoto provides the Studio with templates or sample language for Studio’s Web Presence or Online Shop (for example, general terms and conditions, privacy notices, and subscription disclosures) (collectively, “Templates”), Studio understands and agrees that this is done as a courtesy only and does not constitute legal advice. GotPhoto disclaims any representation or warranty that the Templates comply with the law or protect Studio against potential claims from End Customers. Studio understands and agrees that it is Studio’s exclusive responsibility to ensure its agreements with and disclosures to End Customers comply with all applicable law and, if Studio deems fit, Studio will seek the professional advice of a qualified attorney to ensure the same.
3.4 Taxes and levies. The Studio shall be responsible for determining whether and which taxes, customs duties or other levies are due in relation to the End Customers and for paying any applicable Sales Tax to the competent tax office. For Studio’s convenience, GotPhoto shall issue the invoices automatically in accordance with the Studio’s specifications; In this respect there is no duty of control on the part of GotPhoto. Studio understands and agrees that it will seek the advice of a qualified tax professional regarding any tax obligations arising out of Studio’s Web Presence and/or Online Shop.
4. Duties and obligations of the Studio
4.1 Account Information. The Studio is obliged to fill in all required mandatory fields and to provide GotPhoto with all account information correctly and completely and to update it immediately in the event of changes (e.g., relocation) as well as the invoice information settings (for example, sales tax rate settings). Upon request by GotPhoto, the Studio shall provide suitable proof of identity.
4.2 Legal Compliance. The Studio is obliged to observe all applicable regulations and laws when using the Services, including without limitation, all laws related to copyright, trademark, right of privacy, right of publicity, consumer protection laws, privacy law, consumer protection regulations (e.g., false advertising), and laws regulating obscenity, pornography, and illegal substances and materials. This applies in particular, to
The choice of Subdomain or Top-Level Domain,
Data protection consent and information obligations,
the general terms and conditions used by the Studio towards End Customers, and
the posting of content (see also Section 5).
4.3 Account credentials. The Studio may be required to create a username, user account, and/or password in order to access some or all of the Services (collectively, Studio’s “Account Credentials”). Studio shall keep its Account Credentials confidential and safe, not make them accessible to third parties and report any loss or unauthorized access to GotPhoto without delay.
4.4 Prohibitions. The Studio represents and warrants that it will refrain from,
- posting content that contains malware,
- using the Services as a hosting service for content which is not directly attributable to its activity as a Studio (e.g., music archive, cinema films),
- to offer images in the Online Shop which are not either authored or owned by Studio, unless GotPhoto has given its consent in advance, which GotPhoto may not unreasonably withhold.
4.5 Backup copies. GotPhoto disclaims all responsibility to maintain a backup of Studio’s content. It shall be incumbent upon the Studio to keep copies of the Studio content (in particular, texts and photos) posted by it and to make regular back-up copies. If the Studio breaches this obligation, GotPhoto’s liability for loss of data, for which GotPhoto is responsible, shall be limited to the amount of such damage as would have occurred, if the Studio had made proper regular backups.
4.6 Tax relevant data. The Studio is responsible for storing data in accordance with the statutory requirements (in particular, the provisions of commercial and tax law). Upon request by GotPhoto, Studio will provide GotPhoto with required tax forms and/or identification.
5. Content posted by the Studio
5.1 Rights of use. The Studio hereby grants GotPhoto a worldwide, non-exclusive, royalty-free right, limited to the term of these Terms, to use the photos, texts and other content (“Studio Content”) posted by the Studio in the Services, exclusively for the purpose of providing the Services. This includes storing the Studio Content on servers of a data center used by GotPhoto, reproducing it to the extent required (e.g., in backups, creation of prints), editing it (e.g., creation of thumbnails) and making it publicly accessible.
5.2 Third-Party Consents. The Studio hereby warrants to GotPhoto that the Studio holds all rights to the Studio Content and has obtained all consents, which are necessary to grant GotPhoto the rights granted in this agreement. This includes rights of use under copyright law, trademark and other labelling rights, ancillary copyrights and any necessary rights of publicity, waivers, releases, or other consents from persons depicted.
5.3 Legality; No obligation of GotPhoto to audit. Furthermore, the Studio warrants to GotPhoto that the Studio Content does not violate any applicable laws or other regulations under criminal law (e.g., prohibition of the dissemination of pornography), competition law and the law for the protection of minors. GotPhoto is not obliged to actively check or monitor the Studio Content for its legality. However, if GotPhoto obtains positive knowledge of illegal Studio Content or illegal activities of the Studio, GotPhoto is entitled to temporarily interrupt the accessibility of the Services for the Studio, including as set forth in Section 6 below.
6.1 Blocking due to breach of duty. If the Studio (i) defaults on its payment obligation or (ii) materially breaches its contractual obligations in any other way, GotPhoto shall be entitled, at its sole discretion, to suspend the provision of Services in whole or in part until the breach of contract has ceased, for example, by taking the Web Presence in the Online Shop offline or by blocking or deleting affected images (in any such event, “Blocking”). The Blocking shall be limited, as far as possible, to the allegedly infringing Studio Content or activities. Before Blocking, GotPhoto shall inform the Studio of the breach of duty in writing or by e-mail and request the Studio to remedy the breach or to cease and desist the prohibited conduct, unless GotPhoto cannot reasonably be expected to do so (e.g., inability to pay of the Studio). The warning will generally be issued at least one week prior to a Blocking, except in case of imminent danger (e.g., infringing content). The Studio shall remain obliged to pay the remuneration even during the Blocking. The Blocking will be lifted as soon as the infringement has ended or the suspicion of an infringement is invalidated to the conviction of GotPhoto.
6.2 Other cases. Clause 6.1 shall also apply if (i) third parties approach GotPhoto with a plausible allegation that the Studio’s use of the Services is unlawful (e.g., Studio Content infringes third party rights) or GotPhoto has evidence to this effect from its own knowledge, or (ii) GotPhoto has evidence that the Studio’s customer account is being misused by third parties.
7. Remuneration, payment processing and settlement
7.1 Remuneration. The Studio shall timely pay GotPhoto all fees owed for the use of the Services for Studio’s Plan and any Add-on Services purchased by Studio. If image editing services are commissioned by Studio from GotPhoto, Studio shall timely pay purchase price and shipping costs and the “Special terms for commissioning image editing services” (Section 13, below) shall apply.
7.2 Subscription Plans. Some Plans are offered on a subscription fee basis, the terms of which will be communicated to Studio at the time it purchases the Plan. If Studio purchases a subscription Plan, Studio understands and agrees that, in addition to its first payment, Studio’s credit or debit card on file will be charged for additional subscription periods (e.g., once per month) without obtaining further permission or confirmation from Studio. In other words, subscription Plans renew automatically unless cancelled in advance of the next payment period by Studio.
7.3 Fees. Dependent upon the terms of Studio’s Plan, GotPhoto may assess one or more of the following categories of fees to Studio, some of which are billed on a subscription basis: (i) annual or monthly hosting fees for the storage of photos, paid on a subscription basis; (ii) service fees for the provision of the Online Shop and processing of End Customer orders for Studio; (iii) payment processing fees and fines; (iv) fees for image editing services; and (v) licensing fees for specialized software, apps or plug-ins made available to Studio through the Website. The fees on some Plans are assessed on a pro rata (e.g., portion of total sales through the Online Shop) or cost-per-sale (e.g., fee for each product purchased by an End Customer in the Online Shop) basis. For such Plans, GotPhoto’s calculation of the numbers of sales, total sales, and other bases for determining the associated fees shall be binding upon all parties.
7.4 Plan Changes and Cancellation. To change or cancel a Plan, the Studio may either log into its account or email GotPhoto at firstname.lastname@example.org. Switching to a lower Plan, including a subscription fee-free Plan (where available), is possible, provided that changes and cancellations must be made at least one (1) week prior to the end of the contract term of the current Plan if communicated via email and at least three (3) business days before the end of the contract term of the current plan if changed within the account of the Studio. If Studio’s current Plan has a minimum term, then changes will not go into effect until after the expiration of such minimum term.
7.5 Fee Changes. From time to time, it may be necessary for GotPhoto to change the fees and charges in effect, including for any subscription Plan, and GotPhoto reserves the right, in its sole discretion, to do so. In the event of such changes, GotPhoto will notify Studio of such changes and give Studio an opportunity to terminate this Agreement pursuant to Section 2.4 above.
7.6 Payment processing. GotPhoto works with third-party service providers, including Stripe (each, a “Payment Processor”) to process payments for transactions which End Customers have made via the Online Shop. The Studio may be required to open an account with the Payment Processor and accept the terms of the Payment Processor governing such account. Studio agrees to give its consent, provide all documentations, and will make all declarations required to give GotPhoto access to data concerning Studio’s account with the Payment Processor, and to initiate the settlement of fees owed to GotPhoto directly from such account pursuant to these Terms and Studio’s Plan. Notwithstanding the foregoing, Studio’s understands and agrees that it is solely responsible for its account with the Payment Processor, for maintaining such account in good standing, and that GotPhoto will not have any liability to Studio for any action or inaction of the Payment Processor (including, without limitation, Payment Processor’s authorization of chargebacks, refunds, fines and penalties, Payment Processor fees, or reserves or other holds placed on Studio’s account with Payment Processor. The risk of refund, chargeback, or other payment default by End Customers shall be borne by the Studio. GotPhoto is not obliged to collect payments from End Customers or Payment Processor for Studio.
7.7 Settlement. Unless otherwise agreed in writing or as part of Studio’s Plan terms, GotPhoto invoices the Studio on a monthly basis. For the term of this agreement, the Studio authorises GotPhoto to collect all fees owing from Studio to GotPhoto from the Studio’s Payment Processor account at the time the payment is received from the End Customer. The Studio shall make all declarations and provide all cooperation required for this collection and transfer of fees to GotPhoto. The subscription fee and any other fees (e.g., costs for image editing commissioned by the Studio), which cannot be collected from the Studio’s payment account at the end of the month at the time of invoicing due to lack of funds, shall be collected by GotPhoto via charge to the payment card (e.g., credit or debit card) on file for Studio’s account.
7.8 Online-Invoice. Invoices shall be issued in principle by GotPhoto online by placing the invoice as a downloadable and printable PDF file in the Studio’s online account and a supplementary notification thereof made by e-mail (“Online-Invoice”). There is no entitlement to digitally signed invoices. Invoices are due for payment within 14 calendar days.
7.9 Taxes. Fees do not include taxes and Studio shall pay, indemnify and hold GotPhoto harmless from all applicable sales/use, gross receipts, value-added, GST or other tax on the transactions contemplated herein, other than taxes based on the net income or profits of GotPhoto.
7.10 Default of payment. For all late payments, GotPhoto shall be entitled to charge interest at a rate of the lesser of 9% or the maximum amount authorized by law. GotPhoto reserves the right to claim further damage caused by default and, in the event GotPhoto is forced to initiate any collections actions against Studio for outstanding fees, Studio shall reimburse GotPhoto for all fees and expenses incurred, including without limitation, reasonable attorneys’ fees. If the Studio is in default with the payment of due receivables for more than 6 weeks and is responsible for this, GotPhoto shall be entitled to block the Studio’s access to the Services. GotPhoto shall notify the Studio of the Blocking without delay, stating the reasons, and request the Studio to settle the due claims. The Blocking shall be lifted as soon as the Studio’s default has ended, i.e. all due claims of GotPhoto have been settled. The Studio shall remain obliged to pay the agreed remuneration even during the period of Blocking.
8. Data protection
8.1 Customer data. As between the Studio and GotPhoto, the Studio is the owner and controller of the data of Studio’s End Customers (“Customer Data”) entered by the End Customer as part of a transaction with the Web Presence or Online Shop. To the extent GotPhoto has access to such Customer Data via the Services, GotPhoto shall treat the Customer Data confidentially. No Customer Data in this sense is data from the provision of services that GotPhoto provides directly to End Customers in accordance with clause 3.2.
8.2 Order data processing. Insofar as the Customer Data is personal data, the following applies: GotPhoto processes the Customer Data as a service provider of Studio exclusively on behalf of and in accordance with the Studio’s instructions and solely for the purpose of providing the Services. GotPhoto shall take appropriate technical and organisational measures to protect the Customer Data. The Studio shall remain responsible for the lawfulness of the collection, processing and use of the Customer Data in accordance with all applicable laws, including without limitation, consumer privacy legislation.
8.3 Permitted uses and subcontractors. GotPhoto is entitled to use the Customer Data in aggregated or statistical form for error analysis and further development of the functions of the Services. GotPhoto is also entitled to engage subcontractors in the provision of services (e.g., hosting, payment processing, photo labs) and external collection companies and can pass on Customer Data for this purpose to the extent necessary.
8.4 Special Privacy Rules for Children and Students. If Studio’s content includes photos of persons under eighteen (18) years of age and/or students (for example, if Studio is a school photographer), Studio represents and warrants that such content, and its display and/or sale via its Web Presence and Online Shop, complies with all applicable privacy laws regarding children and/or students, including without limitation, the Family Educational Rights and Privacy Act (“FERPA”) and the Children’s Online Privacy Protection Act (“COPPA”).
9.1 No Warranties. Except as expressly warranted herein, GotPhoto, on behalf of itself and its licensors and suppliers, expressly disclaims any and all warranties, express or implied, regarding the Services, arising by operation of law or otherwise, including without limitation any and all implied warranties of merchantability, fitness for a particular purpose, non-infringement, no encumbrance, or title, in addition to any warranties arising from a course of dealing, usage, or trade practice. Neither GotPhoto nor its licensors or suppliers warrants that the Services will meet your requirements, or that the operation of the Services will be uninterrupted or error-free. GotPhoto disclaims all implied liability for damages arising out of the furnishing of the Services pursuant to these Terms, including without limitation, mistakes, omissions, interruptions, delays, tortious conduct, errors, representations, or other defects arising out of the failure to the furnish the Services, whether caused by acts of commission or omission, or any other damage occurring. GotPhoto shall not be liable for any indirect, incidental, special, consequential, or punitive damages (including without limitation damages for lost profits or lost revenues), whether caused by the acts or omissions of GotPhoto, End Customers, or their agents or representatives.
10.1 Duty to indemnify. Without limiting any indemnification provision of these Terms, Studio (the “Indemnitor”) agrees to defend, indemnify, and hold harmless GotPhoto and its officers, directors, employees, agents, affiliates, and representatives (collectively, the “Indemnitees”) from and against any and all claims, actions, demands, causes of action, and other proceedings (individually, “Claim”, and collectively, “Claims”), including but not limited to legal costs and fees, and providing sole and exclusive control of the defense of any action to GotPhoto, including the choice of legal counsel and all related settlement negotiations, arising out of or relating to: (i) the relationship between Studio and GotPhoto, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) Studio’s breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (iii) Studio’s access to or use of the Services; (iv) Studio’s provision to GotPhoto or any of the Indemnitees of information or other data; (v) Studio’s violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; (v) Studio’s interactions and transactions with End Customers, including its handling of Customer Data; or (vii) Studio’s violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights..
10.2 Requirements. A prerequisite for the indemnification obligation pursuant to Section 10.1 is that GotPhoto timely informs the Studio in writing of any Claims asserted, does not make any concessions or acknowledgements or declarations equivalent thereto and enables the Studio to conduct all judicial and extrajudicial negotiations regarding the Claims at the Studio’s expense. The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by Studio of any Claim as to which Studio is required to defend, indemnify, or hold harmless any, each, and/or all Indemnitees. Studio may not settle any Claim without the prior written consent of the concerned Indemnitees.
11. Limitation of liability
11.1 Limitations. In no event shall GotPhoto or its licensors or suppliers be liable to Studio for any claims arising from Studio’s use of the Services, including without limitation for special, incidental, or consequential damages, lost profits, lost data or confidential or other information, loss of privacy, costs of procurement of substitute goods or services, failure to meet any duty including without limitation of good faith or of reasonable care, negligence, or otherwise, regardless of the foreseeability of those damages or of any advice or notice given to GotPhoto or its licensors and suppliers arising out of or in connection with Studio’s use of the Services. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action. Studio agrees that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between GotPhoto and Studio. The Services would not be provided without such limitations.
11.2 Application. The above disclaimers, waivers, and limitations do not in any way limit any other disclaimer of warranties or any other limitation of liability in any other agreement between Studio and GotPhoto. Some jurisdictions may not allow the exclusion of certain implied warranties or the limitation of certain damages, so some of the above disclaimers, waivers, and limitations of liability may not apply to Studio. GotPhoto’s licensors and suppliers are intended third-party beneficiaries of these disclaimers, waivers, and limitations. No advice or information, whether oral or written, obtained by Studio through the Services or otherwise shall alter any of the disclaimers or limitations stated in these Terms.
12. Term and termination
12.1 Term and termination. These Terms may be terminated by either party with two (2) weeks’ notice, provided that no minimum term results from the selected Plan. Either party may terminate these Terms immediately upon written notice in the event of a material breach by the other party.
12.2 Form. Notice of termination can be given by e-mail or in writing.
12.3 Data at the end of the contract. At the end of the contract term, the Studio can no longer access his/her Customer Data and Studio Content. It is the Studio’s responsibility to export the master data of his customers before the end of the contract term using the export function of the Services and to store it on his/her premises for further use. GotPhoto is not obliged to provide any further disclosure (e.g., provision of certain data as an SQL dump or in a certain format). Upon termination of the contract, GotPhoto shall delete the Customer Data and Studio Content, unless GotPhoto is legally obliged to retain them. If deletion is only possible with disproportionate effort (e.g., in backups), GotPhoto is entitled to block the data instead.
13. Special terms for commissioning image editing services
13.1 Scope of application. Insofar as the Studio commissions photo editing services (e.g., removal of backgrounds, color correction, creation of composites etc) (“Image Editing Services”) from GotPhoto via partner companies of GotPhoto, this Section 13 shall apply to such Image Editing Services.
13.2 Obligations of the Studio. Studio shall deliver the images to be edited in the appropriate resolution and quality. Studio understands and agrees that the edited images will only be as high of quality as the originals provided by Studio.
13.3 Turnaround time. Delivery periods and dates provided to the Studio are only approximate unless GotPhoto has expressly designated them as binding in writing. GotPhoto shall not be liable for the impossibility or delay in the provision of the Image Editing Services insofar as this is caused by acts or failure to act by Studio, force majeure or other events unforeseeable at the time of the conclusion of the contract (e.g., operational disruptions of any kind; mobilisation; war; riot; strike; traffic accident; natural disasters; sabotage; direct and indirect consequences of a pandemic or epidemic, such as quarantine, border closures or other sovereign or official interventions and measures; as well as other events comparable to the aforementioned examples) for which GotPhoto is not responsible. If such events make it considerably more difficult or impossible to provide the Services owed by GotPhoto and if the hindrance is not only temporary, GotPhoto shall be entitled to cancel and/or terminate the Image Editing Services. In the event of temporary hindrances, the deadlines agreed for the provision of the Image Editing Services shall be extended or the respective deadlines shall be postponed by the period of the hindrance plus a reasonable restart period.
13.4 Payment. Studio shall timely pay GotPhoto for the Image Editing Services pursuant to Section 7.
13.5 Disclaimer; Limitation of Liability. The Image Editing Services are provided on an AS-IS basis, and in addition to the disclaimers of warranty set forth in Section 9, GotPhoto disclaims any warranty that the Image Editing Services will be of a specific quality, look or feel. Studio uses the Image Editing Services at its own risk, and GotPhoto shall not be liable for any damages to Studio, Studio’s relationships or contracts with its End Customers, Studio’s reputation, or any third parties arising out of or in relation to the Image Editing Services (e.g., if End Customers feel the images are “over-edited” or not edited enough.) Studio’s indemnification obligations shall extend to all third-party claims brought against GotPhoto relating to the Image Editing Services.
13.6 Purchase from other companies. If the Studio orders Image Editing Services from companies other than GotPhoto’s partner companies, the contract for the purchase of the Image Editing Services shall not be concluded between GotPhoto and the Studio but directly between the Studio and the respective company. The terms and conditions of the respective company shall then apply; GotPhoto merely transmits the Studio’s offer to the company.
14. Dispute resolution
14.1 Choice of Law; Venue for any Judicial Proceeding. These Terms, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in the State of New York, and shall be governed by and construed in accordance with the laws of New York without regard to its conflict of law principles. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party. Without waiving and subject to the arbitration agreement below, the proper venue for any judicial action arising out of, relating to, or in connection with this Agreement will be the state and federal courts located in or nearest to New York, New York (a “Court of Competent Jurisdiction”). The parties stipulate to, and agree to waive any objection to, the personal jurisdiction and venue of such courts, and further expressly submit to extraterritorial service of process.
14.2 Binding Arbitration. If Studio and GotPhoto cannot resolve a dispute or other claim through negotiations, the dispute or claim shall be finally and exclusively resolved by binding arbitration. This arbitration agreement is reciprocal, and any election to arbitrate by one party shall be final and binding on the other(s). The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party. The Federal Arbitration Act governs the interpretation and enforcement of this agreement to arbitrate.
The arbitration shall be commenced and conducted through JAMS (www.jamsadr.com) under the Streamlined Rules, as modified by this agreement to arbitrate. All remedies available to the parties under applicable federal, state or local laws shall remain available in arbitration. The parties shall each participate in the selection of a neutral arbitrator pursuant to the Streamlined Rules. Unless Studio and GotPhoto agree otherwise in writing, the final arbitration hearing shall take place in person at the JAMS facility located in or nearest to Studio’s city of residence. If Studio initiate arbitration against GotPhoto, Studio will be required to pay an initial fee of $250. If GotPhoto initiates arbitration against Studio, GotPhoto shall pay all costs required by it of JAMS to initiate the arbitration. All other arbitration costs (including any remaining JAMS Case Management Fee and all professional fees for the arbitrator’s services) shall be paid as determined by the arbitrator. If JAMS is unavailable to arbitrate a dispute or claim, Studio and GotPhoto agree to arbitrate using an alternative arbitral forum. Regardless of the outcome of the arbitration, Studio and GotPhoto will each pay their own attorneys’ fees and costs unless an award of attorneys’ fees is available under applicable statute. The arbitrator’s award will consist of a written statement stating the disposition of each Claim. The award will also provide a concise written statement of the essential findings and conclusions on which the award is based. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Either party may litigate in a Court of Competent Jurisdiction to compel arbitration, to stay proceedings pending arbitration, or to modify, confirm, vacate, or enter judgment on the award entered by the arbitrator.
Studio acknowledges that without this provision, Studio would have the right to sue in court with a jury trial.
14.3 Restrictions Against Joinder of Claims. Studio and GotPhoto agree that any arbitration shall be limited to each Claim individually. Studio and GotPhoto agree that each may only bring claims against the other in Studio’s or GotPhoto’s individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. If this specific provision is found to be unenforceable in a Court of Competent Jurisdiction, the Claim will still be finally and exclusively resolved by binding arbitration upon the election of either party, and any election to arbitrate by one party shall be final and binding on the other(s). In addition: (1) no arbitration shall be joined with any other arbitration, and (2) there is no right for any Claim to be arbitrated on a class-action basis or to employ class action procedures.
Studio acknowledge that without this provision, Studio would have the right to participate in class actions.
15. Copyright abuses.
15.1 Infringement Notices. GotPhoto respects the intellectual property rights of others. GotPhoto follows the notice and takedown procedures in the Digital Millennium Copyright Act (“DMCA”). If you believe content located on or linked to by the Website violates your copyright, please immediately notify us by emailing us a DMCA takedown notice (“Infringement Notice”), providing the information described below. If GotPhoto takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party who made the content available at the most recent email address that party provided to us. Under the DMCA, you may be held liable for damages based on material misrepresentations in your Infringement Notice. You must also make a good-faith evaluation of whether the use of your content is a fair use; fair uses are not infringing. If you are not sure if content located on or linked to by the Website infringes your copyright, you should first contact an attorney.
15.2 Contents of Infringement Notices. The DMCA requires that all Infringement Notices must include the following: (a) a signature, electronic or physical, of the copyright owner or a person authorized to act on their behalf; (b) an identification of the copyright claimed to have been infringed; (c) a description of the nature and location of the material that you claim to infringe your copyright, in sufficient detail to permit GotPhoto to find and positively identify that material; (d) your name, address, telephone number, and email address; and (e) a statement by you: (i) that you believe in good faith that the use of the material that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner’s agent; and, (ii) under penalty of perjury, that all of the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on their behalf.
15.3 Point of Contact. Infringement Notices should be sent to service@GotPhoto.com with the subject line “DMCA Notice”. GotPhoto will respond to all DMCA-compliant Infringement Notices, including, as required or appropriate, by removing the offending material or disabling all links to the offending material.
16. Third-party content and websites
16.1 Third-Party Websites. The Website may be linked with the websites of third parties (“Third-Party Websites”), some of whom may have established relationships with Company and some of whom may not. GotPhoto does not have control over the content and performance of Third-Party Websites. GotPhoto has not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on Third-Party Websites. GotPhoto disclaims all responsibility and liability for any damages or other harm, whether to Studio or to third parties, resulting from Studio’s use of Third-Party Websites.
16.2 No Reliance on Third-Party Content. Opinions, advice, statements, or other information made available through the Website by third parties are those of their respective authors, and should not necessarily be relied upon. Those authors are solely responsible for their content. GotPhoto does not: (a) guarantee the accuracy, completeness, or usefulness of any third-party information accessible on or through the Website; or (b) adopt, endorse, or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by a third party through the Website.
17.1 Set-off; retention. The Studio shall not be entitled to set off any claims against claims of GotPhoto unless the counterclaim is undisputed or has been finally determined by a an arbitrator or Court of Competent Jurisdiction. Furthermore, the Studio is not entitled to withhold payments or to suspend other obligations incumbent upon it, unless GotPhoto is in material breach of obligations due under the same contractual relationship despite written warning and has not offered adequate security.
17.2 Partial ineffectiveness. Should any provision of these Terms be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions of these Terms. The parties agree already now to replace the invalid provision with a legally permissible provision that comes as close as possible to the economic intention. This shall also apply in the event of an unintentional loophole.
17.3 Amendments. These Terms may only be modified by a written amendment signed by an authorized executive of GotPhoto, or by the unilateral amendment of these Terms by GotPhoto, and Studio’s acceptance thereof, pursuant to Section 2.4.
17.4 Independent Contractors. Studio and GotPhoto are independent contractors and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these Terms or the provision of the Services.
17.5 No Third-Party Beneficiaries. Except as expressly stated herein, there are no third-party beneficiaries to these Terms.
17.6 Assignment. These Terms and all of Studio’s rights and obligations under it will not be assignable or transferrable by Studio without the prior written consent of GotPhoto. These Terms will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.
17.7 Headings. The headings in these Terms are for convenience only and shall have no legal or contractual effect.
Last update: September 1, 2022