Effective Date: November 5, 2016
PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE “TERMS”) CAREFULLY. BY ACCESSING OR USING THIS WEBSITE OR ANY OTHER WEBSITES OF PRETTY INSTANT, INC., ITS AFFILIATES OR AGENTS (“COMPANY”) WITH LINKS TO THIS AGREEMENT (COLLECTIVELY, THE “WEBSITE”) IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE AND APPLICATION (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”) BY COMPANY OR USERS OF THE SITE (“USERS”), CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR MERELY BROWSING THE WEBSITE, OR USING THE COMPANY’S MOBILE APPLICATION (THE “APPLICATION”), YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF SERVICE PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF SERVICE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THIS WEBSITE, THE APPLICATION, OR THE SERVICES.
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Company will make a new copy of the Terms of Service available at the Website and within the Application, and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website or within the Application. We will also update the “Last Updated” date at the top of the Terms of Service. If we make any material changes, and you have registered with us to create an Account (as defined in Section 4.1 below), we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately for new Users of the Website, the Application, and the Services (collectively, the “Company Properties”) and will be effective thirty (30) days after posting notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 4.1 below). Company may require you to provide consent to the updated Terms in a specified manner before further use of Company Properties is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using Company Properties. Otherwise, your continued use of any of the Company Properties constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
Company provides an online marketplace that connects Users who are willing to provide Photography Services (“Photographer(s)”) with Users who are looking for Photographers (“Clients”). Each Client request for Photography Services (a “Booking Request”) to be provided by one or more Photographers (the “Photography Services”) is hereinafter referred to as a “Gig”. Company does not employ Photographers, so the actual contracts for Photography Services are directly between Clients and Photographers. No joint venture, partnership, employment, or agency relationship exists between any User and Company as a result of these Terms, or the use of the Company Properties.
COMPANY OFFERS INFORMATION AND A METHOD FOR CLIENTS TO REQUEST PHOTOGRAPHY SERVICES AND TO CONTRACT WITH ONE OR MORE PHOTOGRAPHERS TO PROVIDE PHOTOGRAPHY SERVICES, BUT COMPANY DOES NOT PROVIDE PHOTOGRAPHY SERVICES AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY PHOTOGRAPHY SERVICES PROVIDED TO YOU BY PHOTOGRAPHERS.
While Company supplies Clients with Photographers who are available to provide Photography Services for Gigs and facilitates these Gigs by supplying a medium for exchange of money between Clients and Photographers, Company does not take part in the interaction between Users. We do not have control over the quality, timing, legality, or failure to provide Photography Services or any aspect whatsoever of any ratings provided by Users, or of the integrity, responsibility, or any actions of any Users. Company makes no representations about the suitability, reliability, or timeliness of the Photography Services provided by Photographers. Although Company may confirm that Photographers are licensed to provide Photography Services in the relevant jurisdiction, as described in Section 12.1 below, we cannot confirm that each User is who they claim to be.
When interacting with other Users you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don't know. You are solely responsible for your interactions with other Users of Company Properties and any other parties with whom you interact through Company Properties. NEITHER COMPANY NOR ITS AFFILIATES OR THIRD PARTY PROVIDERS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. COMPANY AND ITS THIRD PARTY PROVIDERS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF COMPANY PROPERTIES.
Company Properties and the information and content available on Company Properties are protected by copyright laws throughout the world. Subject to the Terms, Company grants you a limited license to reproduce portions of Company Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Company in a separate license, your right to use any Company Properties is subject to the Terms.
The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Company Properties or any portion of Company Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Company Properties (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Company’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Company Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Company Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Company Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Company Properties. Any future release, update or other addition to Company Properties shall be subject to the Terms. Company, affiliates and third party providers reserve all rights not granted in the Terms. Any unauthorized use of Company Properties terminates the licenses granted by Company pursuant to its Terms.
In order to access certain features of Company Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account on the Website or through the Application (“Account”).
In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least eighteen (18+) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using Company Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. As a User, you are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Company Properties by minors. You may not share your Account or password with anyone, and you agree to (1) notify Company immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future use of Company Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. You agree not to create an Account or use Company Properties if you have been previously removed by Company, or if you have been previously banned from any of Company Properties.
In addition, if you are registering to become a Photographer, you agree to provide a clear headshot of your likeness for your profile; for so long as you make yourself available to provide Photography Services hereunder.
The following terms apply to Users who are Clients:
You acknowledge and agree that Company does not and cannot guarantee that Photographers will be available to fulfill your Booking Requests.
The fee that Company will charge for a Booking Request will be listed on the confirmation email you receive after submitting your Booking Request. Company, at its sole discretion, may make promotional offers with different features and different rates to any Client. These promotional offers, unless made to you, shall have no bearing whatsoever on the amount you owe to Company.
If your Booking Request is for Photography Services on a recurring basis (i.e., weekly or monthly) (a “Recurring Gig”), Company will charge you at the end of each two week period for Photography Services within such two week period. If your Booking Request is for Photography Services at a single event (a “Single Gig”), Company will charge you upon completion of the Single Gig. Company will charge your credit card for the hours worked by the Photographers hired by you, and you hereby authorize Company to charge your credit card for such amounts.
Due to the nature of our service we have a cancellation policy in place to protect our photographers. Our full cancellation and reschedule policy can be found below. By using Services you agree to this policy and any related cancellation or reschedule fees.
Events, Headshot, Product, Real Estate
You may cancel or change a booking at any time before it is confirmed – absolutely free of charge. Once your shoot is confirmed and a photographer is staffed, 50% of your photography fee will be due if a booking is cancelled, rescheduled or shortened more than 48 hours before your photographer is scheduled to arrive. Should you need to cancel, reschedule or shorten your booking within 48 hours of your booking, 100% of your original photography fee will be due.
The cancellation policy for our Interactive service can be found in the Terms of Service section of your service agreement.
Payments made to Company are non-refundable. This no refund policy shall apply at all times regardless of your decision to terminate your usage, our decision to terminate your usage, disruption caused to the Company Properties either planned, accidental, or intentional, or any other reason whatsoever. Company has no obligation to provide refunds or credits, but may grant them in extenuating circumstances in Company's sole discretion, such as to correct any errors made by Company.
Unless otherwise stated in writing, the Company shall own the copyright in all images created and shall have the exclusive right to make reproductions. The Client is obtaining a digital file for personal use only, and shall not sell the photographs. If Client is obtaining a photo for editorial, promotions, or marketing, Pretty Instant authorizes Client to reproduce the photo in this manner. In such an event, Client shall run a credit for Pretty Instant [Photo by Pretty Instant] adjacent to the photograph.
Client will be liable for all transaction taxes on the Photography Services provided by Photographers (other than taxes based on Company's income).
The following terms apply to Users who are Photographers:
Once a Client submits a Booking Request, Company selects the Photographers who will receive notice of and be invited to provide the requested Photography Services. If you are selected by the Company to provide Photography Services for a Client who has requested such services, Company will notify you by SMS and/or email of the Gig, providing you with the date, hours and location of the Gig (the “Company Notice”). After you have indicated your availability to provide Photography Services for a Gig, Company will notify you whether the Client has engaged you to provide the Photography Services. You acknowledge and agree that Company does not and cannot guarantee that you will be selected to provide any Photography Services or that any Client will engage you to perform Photography Services for which you have indicated you are available.
You represent that you have the experience, qualifications and ability to provide Photography Services. You further represent that you shall use your best efforts to perform the Photography Services for any Gigs for which you are selected and which you have accepted, such that the results are satisfactory to the Clients who requested such Gigs.
You hereby represent and affirm that you have not been convicted of a crime, which does not include the following: (i) minor traffic infractions; (ii) misdemeanor convictions more than two years ago for the possession, transportation or furnishing of marijuana, or for the possession of instruments or paraphernalia related to the use of marijuana or similar controlled substances, or presence where such substances were used; or (iii) convictions which have been expunged or sealed by the court.
For each Gig that you perform, Company will pay you the fees specified in the Company Notice. The payment shall be made within 15 days after the Company received Client’s payment for your Photography Services.
You acknowledge and agree to comply with the terms and conditions of the Company’s Professional Services Agreement</a>.
You acknowledge and agree that Company provides the Website and Application for the purposes of connecting Photographers with prospective Clients and that there is no (i) employment, (ii) part-time employment, (iii) consulting, or (v) joint-venture relationship whatsoever between Company and you.
You acknowledge that you retain no ownership of photographs, video or any other multimedia content (the “Media”), taken during Gigs in which the Photographer is being compensated for Photography Services. Media may be used for promotional use only at the written request to the Company by the Photographer.
You acknowledge and understand that the Photographer is an independent contractor for federal state income tax purposes, federal state unemployment tax purposes, social security tax purposes, (the “Taxes”) Fair Labor Standards Act purposes, workers compensation purposes and all other purposes and that the Company shall have no responsibility for any obligations incurred or assumed by the Contractor. The Contractor agrees and understands that the Company is in no way obligated to provide any employment related benefits to the contractor, including pension plans or group health insurance plans.
You hereby consent to provide and authorize Company, Stripe and PayPal to share any information and payment instructions you provide to the extent required to complete the payment transactions in accordance with the Terms, including personal, financial, credit card payment, and transaction information.
The value of the Company rests in its thriving marketplace of Clients and Photographers. It is a violation of the Terms to (a) intentionally avoid the payment of fees by arranging Gigs with Photographers outside of the context of the Company Properties, or (b) for a Photographer to knowingly accept a Gig with the intention of delegating the performance of the Photography Services to another Photographer.
Each User understands and agrees that:
The transmission of funds in the manner described herein is not a separate and discrete service that Company provides in addition to the Services. Rather, the transmission of funds in an auditable manner is an integral part of the Services that Company provides.
Each User's payment account is a custodial account administered by Company to facilitate disbursement of each Client’s payment to each Photographer.
Company acts as agent of each User and not as a trustee or fiduciary with respect to payments received through Company.
Company holds funds delivered to it in a commingled account at a bank (each, a "Pooled Account"), and may include in the titling of a Pooled Account "Company, for the benefit of others" or similar words. Company maintains records at Company that should, in the event of a bank failure, allow the FDIC to determine which funds are payable to which User.
Company will not voluntarily make your funds available to its creditors in the event of bankruptcy.
You agree that Company has sole discretion over the establishment and maintenance of any Pooled Account. You agree that you will not receive interest or other earnings on the funds that Company handles as your agent and places in a Pooled Account. In consideration for your use of Company Properties, you irrevocably transfer and assign to Company any ownership right that you may have in any interest that may accrue on funds held in a Pooled Account. This assignment applies only to interest earned on your funds, and nothing in this Agreement grants Company any ownership right to the principal of the funds you maintain with Company. In addition to or instead of earning interest on Pooled Accounts, Company may receive a reduction in fees or expenses charged for banking services by the banks that hold your funds.
Because Company is not involved in the actual contracts between Photographers and Clients or in the completion of a Gig, in the event that you have a dispute with one or more Users, you hereby release Company, its affiliates, and third party providers (and our officers, directors, agents, investors, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Company reserves the right, but has no obligation, to intercede in any disputes between Users.
You acknowledge that all information, data, text, images and/or other materials accessible through the Company Properties (“Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not Company, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Company Properties (“Your Content”), and other Users of Company Properties, and not Company, are similarly responsible for all Content they Make Available through Company Properties (“User Content”). You agree that you will not make available any Content that contains nudity, violence, sexually explicit, or offensive subject matter.
You acknowledge that Company has no obligation to pre-screen Content (including, but not limited to, Your Content and other User Content), although Company reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Company pre-screens, refuses or removes any Content, you acknowledge that Company will do so for Company’s benefit, not yours. Without limiting the foregoing, Company shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
Except with respect to Your Content and other User Content, you agree that Company and its suppliers own all rights, title and interest in Company Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying Company Properties.
Company’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with Company Properties are the trademarks of Company and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Company Properties are the property of their respective owners.
Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in Company Properties.
Company does not claim ownership of Your Content. However, when you as a User make available Your Content on or in Company Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
Subject to any applicable account settings that you select, you grant Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing Company Properties to you and to our other Users. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Company, are responsible for all of Your Content that you Make Available on or in Company Properties.
Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Company.
You agree that submission of any ideas, suggestions, documents, and/or proposals to Company (“Feedback”) is at your own risk and that Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Company Properties.
The Services may in the future host Client reviews or ratings of Photographers, which are user generated content. Such reviews or ratings are Client opinions, are not the opinion of Company, and have not been verified by Company. You agree that Company is not liable for any reviews or ratings.
The Services may not be used to solicit for any other business, website or services. You may not solicit, advertise for, or contact in any form Users for employment, contracting, or any other purpose not related to the Services facilitated through Company Properties. You may not use the Services to collect usernames and/or email addresses of Users by electronic or other means without the express prior written consent of Company.
Company may, but is not obligated to, monitor or review Company Properties and Content at any time. Without limiting the foregoing, Company shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law.
Although Company does not generally monitor User activity occurring in connection with Company Properties or Content, if Company becomes aware of any possible violations by you of any provision of the Terms, Company reserves the right to investigate such violations, and Company may, at its sole discretion, immediately terminate your right to use Company Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your Content; (b) your use of, or inability to use, Company Properties or Photography Services; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; (e) your violation of any applicable laws, rules or regulations; or (f) if you are a Photographer, your performance of Photography Services. Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Company in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Company Properties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF COMPANY PROPERTIES IS AT YOUR SOLE RISK, AND COMPANY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE QUALITY OF THE PHOTOGRAPHY SERVICES OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE COMPANY PARTIES LIABLE, FOR THE CONDUCT OF OTHER USERS, AND THAT THE RISK OF ANY INJURY RESTS ENTIRELY WITH YOU. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF COMPANY PROPERTIES. YOU UNDERSTAND THAT COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF COMPANY PROPERTIES EXCEPT AS SET FORTH IN SECTION 12.1. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF COMPANY PROPERTIES, INCLUDING BUT NOT LIMITED TO THE PERFORMANCE OF PHOTOGRAPHY SERVICES BY PHOTOGRAPHERS. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF COMPANY PROPERTIES.
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY LOSS OF USE, DATA, OR PROFITS, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH COMPANY PROPERTIES, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF COMPANY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE COMPANY PROPERTIES OR PHOTOGRAPHY SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE PHOTOGRAPHY SERVICES IF YOU ARE UNABLE TO SECURE PHOTOGRAPHY SERVICES THROUGH THE COMPANY PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON COMPANY PROPERTIES; (5) THE PERFORMANCE OF PHOTOGRAPHY SERVICES BY PHOTOGRAPHERS OR OTHERWISE ARISING OUT OF OR RELATED TO GIGS; OR (6) ANY OTHER MATTER RELATED TO COMPANY PROPERTIES, PHOTOGRAPHY SERVICES, OR GIGS, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
UNDER NO CIRCUMSTANCES WILL COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY COMPANY AS A RESULT OF YOUR USE OF COMPANY PROPERTIES DURING THE SIX MONTH PERIOD PRECEDING THE DATE ON WHICH YOUR CLAIM AGAINST COMPANY PARTIES AROSE. IF YOU HAVE NOT PAID COMPANY ANY AMOUNTS DURING SUCH PERIOD, COMPANY’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50).
CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
COMPANY PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT).
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
Company may terminate or suspend your right to use Company Properties at any time for any or no reason by providing you with written or email notice of such termination, and termination will be effective immediately upon delivery of such notice. We may cancel unconfirmed Accounts or Accounts that have been inactive for a long time, or modify or discontinue our Services. Without limitation, Company may terminate or suspend your right to use Company Properties if you breach any provision of the Terms or any policy of Company posted through Company Properties from time to time; if Company otherwise finds that you have engaged in inappropriate and/or offensive behavior; if Company believes you are creating problems or possible legal liabilities; if Company believes such action will improve the security of our community or reduce another User’s exposure to financial liabilities; if Company believes you are infringing the rights of third parties; if Company believes you are acting inconsistently with the spirit of these Terms; if despite our reasonable endeavors, Company is unable to verify or authenticate any information you provide; or if you fail to pay all fees due for our Services by the payment due date. In addition to terminating or suspending your Account, Company reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. Even after your right to use the Services is terminated or suspended, these Terms will remain enforceable against you.
If Company becomes aware of any possible violations by you of the Terms, Company reserves the right to investigate such violations. If, as a result of the investigation, Company believes that criminal activity has occurred, Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Company Properties, including Your Content, in Company’s possession in connection with your use of Company Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms; (3) respond to any claims by Users related to any Gigs; (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Company, its Users or the public, and all enforcement or other government officials, as Company in its sole discretion believes to be necessary or appropriate.
In the event that Company determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for Company Properties, Company reserves the right to:
If your registration(s) with or ability to access Company Properties, or any other Company community is discontinued by Company due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Company Properties or any Company community through use of a different user name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Company Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
The communications between you and Company use electronic means, whether you visit Company Properties or send Company e-mails, or whether Company posts notices on Company Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
You hereby release Company Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Company Properties or any Gigs or Photography Services arranged in accordance with these Terms, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms, your use of Company Properties, or any Gigs or Photography Services arranged pursuant to these Terms. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Company shall not be liable for any delay or failure to perform any Services resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. Company shall not be liable for any delay or failure by Photographers to perform Photography Services requested by Clients.
If you have any questions, complaints or claims with respect to Company Properties, please contact us at: Pretty Instant, 300 Summer St., Ste. 14B, Boston, MA, Attn: Legal, calling 617-299-9465, or emailing email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
YOU AND COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, COMPANY PROPERTIES, CONTENT, OR ANY Gigs OR Photography Services, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The exclusive venue and jurisdiction for any and all disputes, claims, and controversies arising from or relating to these Terms shall be the state courts located in Delaware.
Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Terms, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notices to Company at the following address: Pretty Instant, Inc., 300 Summer St., Ste. 14B, Boston, MA 02210, Attn: Legal. Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
You may not use, export, import, or transfer Company Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Company Properties, and any other applicable laws. In particular, but without limitation, Company Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Company Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Company Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Company are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.