[Last Amended: January 25, 2024]
This Terms of Service (“Terms”) together with the Data Protection Agreement (”DPA”) (and together with the Terms shall be referred to as ”Agreement”), governs your use of our Platform (as defined below) and constitute a legally binding and an enforceable agreement between you, the user of our Platform (”you” or ”your”) and Pic-Time Ltd. (“Pic-Time”, “we”, “us” or “our”). Each party to the Agreement shall be referred to herein as a “party” and collectively as the “parties”.
ACCEPTANCE OF THE AGREEMENT: BY CREATING AN ACCOUNT OR BY OTHERWISE USING THE SERVICES OR PLATFORM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO THE AGREEMENT. IF YOU DO NOT AGREE TO ALL OR PART OF THIS AGREEMENT PLEASE DO NOT, CREATE AN ACCOUNT, OR USE THE SERVICES IN ANY MANNER. THIS AGREEMENT GOVERNS YOUR ACCESS TO, AND USE OF, THE WEBSITES, THE SERVICES, PLATFORM AND INTEGRATIONS WHICH ARE OWNED, OPERATED OR PROVIDED BY PIC-TIME.
Pic-Time reserves the right, at its own discretion, to modify, correct or amend the Agreement at any time. The most current version of the Agreement will always be displayed on Pic-Time's website and any changes will be indicated under the “Last Amended” date above. Pic-Time may provide you with a written notification or display a notice on its website, all at its sole discretion, in the event that a material change was made. Your continued use of the Service following the publication by Pic-Time of an amended version of the Agreement will constitute your acceptance of the amendments. It is therefore important that you read any notice or message from us carefully. If you wish to terminate your subscription due to such updates or changes in the Agreement you may do so by following the instructions set out in the Term and Termination section below.
1. SCOPE OF SERVICE
1.1. Pic-Time offers an online SaaS platform (“Platform”) which enables professional photographers (”Photographers”) to create an online gallery (”Gallery”) by uploading photos, videos and additional digital files (”Content”) and storing such Content in the Gallery; to invite Photographer’s customers (including prospective customers and casual visitors, collectively ”Customers”") to register and view the Content shared by the Photographers with the Customers Galleries; to offer Customers good and services, such as creating merchandise, printing the photos via third-party vendors (”Photo Lab”) and subject to such Photo Lab terms of service; and to use the marketing services and tools (such as email marketing) (collectively, the “Services”). The Service provided to you and the features included therein, will depend on the type of subscription plan that you have signed up for, for additional information please see section 4 below.
1. 2. Throughout the duration of this Agreement, Pic-Time will provide the Customer with technical support and services as part of its Services. The availability and extent of these support services are at the sole discretion of Pic-Time and are subject to the resources it has available.
1.3. Pic-Time does not review any Content that is uploaded to the Service. You hereby acknowledge and agree that we are not responsible or liable for any Content that has been uploaded, posted, or otherwise transmitted through the Service by you or a third party. We hereby reserve the right, but are not obligated, to delete any Content that we, in our sole discretion, deem to be in violation of the Agreement or that is otherwise unacceptable.
1.4. We may change, modify, suspend, or discontinue any aspect of the Service at any time without notice to you and without any liability to you whatsoever in connection therewith, unless otherwise required to do so under applicable law in which case we will make a reasonable effort to inform you of any significant and substantial changes to the Service that will significantly affect you.\
1.5. In order to use the Services, the Photographer is required to comply with certain technical requirements, including to upload the Content in high-resolution, to ensure that the uploaded Content is always available and to follow the necessary steps to re-load such Content if it was removed or moved from the Gallery. Failure to re-upload the removed Content by the Photographer will be considered a breach of the Agreement by the Photographer and Pic-Time retains the right to close, suspend or remove such Account (as defined below), as a result of such failure.
2. REGISTRATION AND ACCOUNT
2.1. In order to use the Services, you may be required to register and create an account (”Account”). During the registration process you will be required to provide certain information, including personal data which is governed by and processed subject to our Privacy Policy. You hereby represent and warrant that you will provide accurate and complete information in connection with your Account. It is important to note, that in the event you choose to register for our email marketing service during the registration process, we may use your email address that you provided us in order to send you marketing messages and materials as well as operational messages.
2.2. You will designate personal and exclusive usernames and passwords to access the Account. You are solely and fully responsible for maintaining the confidentiality of the password and username of your Account and for all activities that occur under the Account, whether done by you, by a Customer (in the event you are a Photographer) or on your behalf. Except as specifically permitted herein, you may not assign or transfer your rights or delegate your duties under the Account, including your username and password. Please note, that we may, at any time and for any reason, require you to choose a new password or create a stronger password. You undertake to immediately notify Pic-Time if you become aware of unauthorized use of your username and password. Pic-Time shall not be liable for any loss or damage from your failure to maintain the security of your Account and password and is not required to monitor or secure your Account.
3. LICENSE TO USE AND RESTRICTIONS OF USE
3.1 Subject to the terms herein and the applicable subscription plan, Pic-Time grants you a revocable, limited, non-exclusive, non-transferable, non-assignable and non-sub licensable license, during the term of the Agreement, to use our Service solely for the purposes set forth herein.
3.2. Subject to the terms herein, Pic-Time , at its sole discretion, is entitled to: (i) determine the features, settings, pricing, or other tools which are available as a part of the Service; (ii) modify, correct, amend, update, upgrade, enhance, improve, remove, replace or make any other changes to, or discontinue, or cease, temporarily or permanently, any features or functionalities of the Service; and (iii) modify and renew the license granted hereunder under any of the circumstances listed in (ii) above, without incurring any liability to you.
3.3. You hereby undertake not to, and not to allow others to: (i) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (ii) take any action that imposes, or may impose at Pic-Time ’s sole discretion an unreasonable or disproportionately large load on the Services infrastructure; (iii) sell, license (or sub-license), lease, assign, transfer, pledge, or share rights under this Agreement with any third party except as permitted hereunder; (iv) disassemble, decompile, reverse engineer or attempt to discover the source code or underlying algorithms; (v) upload invalid data, viruses, worms, malicious code or other software agents through the Services; (vi) interfere with the proper working or security measures of the Services; (vii) bypass the measures Pic-Time may use to prevent or restrict access to the Services; (ix) use the Services for any illegal or unauthorized purpose, or could give rise to civil liability or other lawsuit; (xi) modify the Services, or insert any code or product, or in any other way manipulate the Services in any way or create any derivative works of the Services; (xiii) use the Services in a manner that violates or infringes any rights of any third party, including but not limited to, privacy rights, publicity rights or intellectual property rights; (xiv) use the Services in a manner that violate any laws in your jurisdiction (including but not limited to copyright laws) and the laws applicable to you in the end users’ jurisdiction during your use.
3.4. You may not offer or sell any goods or services, or provide any information, content or material regarding which may be deemed hazardous, counterfeit, stolen, fraudulent, offensive or abusive; which are prohibited for sale, distribution or use; or which otherwise illegal, including with respect to consumer rights, intellectual property or privacy rights, product safety, trade regulations and sanctions, support, maintenance and export. You undertake not to, and not to allow others to use, upload, transfer, post or make available through Services any content that involves, facilitates, advocates or promotes one or more of the following: (i) false, misleading, deceptive, discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability; (ii) libelous, defamatory, obscene, nudity, pornographic, adult content, sexually explicit or abusive activities; (iii) illegal gambling; (iv) illegal activities; (v) any copyrighted materials for download, sale or otherwise, in any case without the permission of the copyright owner or otherwise in violation of law; (vi) a conflict or violation of any law or any intellectual property or other rights of any person or entity.
3.5. Failure to comply with the provisions set forth above may result in the termination or suspension of access to the Account, the Service (or any part or feature thereof) as well as immediate termination of this Agreement, without derogating from any other remedy Pic-Time is entitled to under this Agreement or applicable law.
4. SUBSCRIPTION FEES AND RECURRING PAYMENTS
4.1. Pic-Time offers various subscription plans, as amended from time to time. For information regarding the subscription plans currently provided by Pic-Time and its prices please visit HERE. The Services provided to you will depend on the type of subscription plan that you have signed up for. Please visit HERE to learn more about our commission rates.
4.2. Pic-Time reserves the right, at its own discretion, to remove existing subscription plans or to change any features, tools, or functionalities of its subscription plans from time to time. Changes to the subscription plan can be based on various factors, e.g., improving and managing the Services, complying with rights holders’ requirements or legal or technical requirements. Where such change materially affects an existing subscription plan to your detriment, you will be informed of such and will have the possibility to terminate the subscription.
4.3. Your subscription fees and any other charges you may incur in connection with your use of our Services, such as taxes or transaction fees, as applicable, will be charged to you via the payment method you provided upon purchasing your subscription plan via a third-party payment processor of Pic-Time's choosing, in its sole discretion. Pic-Time shall not be liable for the processing of fees by such third-party nor shall it be responsible for any errors or miscalculations made by such third-party in connection with such fees.
4.4 The length of your billing period and billing frequency will depend on the type of subscription that you chose upon purchasing your subscription plan. Late or failed payment for any reason, may cause suspension or termination of your Account, the Services and this Agreement, until your payment method has been successfully charged.
4.5. Subscription plans are auto-renewing, meaning payments to a subscription plan will be auto-renewed following the end of the applicable subscription plan period. We will notify you via your email address that your current subscription plan period is about to expire before the end of such subscription plan.
4.6. Pic-Time may make changes to the price of the subscription plan by giving you written notice at least 30 days in advance, which may be provided via the email address you submitted during the registration process or directly through your Account. Such notice will always give you sufficient time to cancel your subscription before the new price goes into effect. By not canceling your subscription plan, you accept the new price for the Services. may terminate the Service in accordance with the Term and Termination section below.
4.7. Pic-Time may, and is not obligated to, offer special promotions from time to time in connection with our subscription plans. We reserve the right to change or cancel these promotions at any time and at our sole discretion.
5. PHOTO STORE
5.1. The Platform enables the Photographers to offer Customers goods and services, such as creating merchandise, printing the Content via Photo Lab. As mentioned above, in order to use such service, the Photographer is required to comply with certain technical requirements, such as uploading the Content in high-resolution to the Gallery.
5.2. The Photographer must select a payment method before Customers can order photos to print from the Gallery. Payment can be made through a third-party payment service provider of your choice, or through Pic-Time's own payment service provider..
5.3. In the event that a purchase order via Photo Lab cannot be fulfilled due to the unavailability of high-resolution Content, Pic-Time will make a reasonable commercial effort to cancel the order and refund the Customer. In the event the Gallery is set up in a revenue sharing model in accordance with the applicable subscription plan, any canceled orders will not be considered for revenue sharing.
5.4. FOR THE AVOIDANCE OF DOUBT, NOTWITHSTANDING THE ABOVE UNDER THIS SECTION HEADED “PHOTO STORE”, PIC-TIME WILL NOT BE RESPONSIBLE FOR REFUNDING CUSTOMERS WHO HAVE PLACED ORDERS THROUGH THE PLATFORM. ONCE ORDERS ARE FULFILLED, MONIES PAID IN CONSIDERATION FOR ANY ORDER ARE PASSED TO THE THIRD-PARTY PHOTO LAB AND ANY RETURNS AND/OR REFUNDS ARE SUBJECT ENTIRELY TO THE RETURN AND/OR REFUND POLICY OF THAT PHOTO LAB.
6. FREE TRIAL
6.1. Pic-Time may offer a 30-day free trial for a particular subscription plan ("Free Trial") as determined by Pic-Time in its sole discretion. If you wish to continue using the subscription plan following the end of the Free Trial period, you will need to click on the "Manage" button in your Account settings for such plan and subscribe separately for the applicable subscription plan. We will notify you via your email address that your Free Trial period is about to expire before the end of the Free Trial.
6.2. We will only allow you to sign up for one Free Trial under your Account. As such, you may be blocked from using additional Free Trials that may be offered in the future to other Photographers. Free Trial eligibility is determined by Pic-Time at its sole discretion and Pic-Time may limit the eligibility to a Free Trial due for any reason including, an abuse or a breach of the Agreement.
6.3. Pic-Time reserves the right to revoke or terminate a Free Trial if Pic-Time, in its sole discretion, determines that you are not eligible.
7. STORAGE AND BACK UP PLANS
7.1. Pic-Time offers a few backup-storage plans (”Storage Service") for registered Photographers Accounts. This Storage Service is intended to provide a backup location for the files and not as the primary storage for the Content. Although Pic-Time makes its best to keep this storage safe and secure, by using this Storage Service you acknowledge that in the event of loss of data or break-in Pic-Time will not be held accountable for the damages.
7.2. Pic-Time may, at its sole discretion, change the Storage Service provided in these plans or change the plan structure. Pic-Time can choose, at its sole discretion, to remove an Account from any of the Storage Service plans. A notification will be made public prior to these changes and it is your responsibility to stay updated.
7.3. Payments for these Storage Service plans are made automatically by a third party service provider selected by Pic-Time. The payments are made in advanced on a monthly basis. Canceling any Storage Service plan will be effective from the next payment. No refund will be made on cancelation. A refund will be made in the cases where the Storage Service was inactive for a period that is longer than 24 hours. Pic-Time is using various backup and network acceleration systems. Please note, removing Content completely from the Pic-Time Platform may take time and will not be immediate.
8. PIC-TIME SOFWARE, AI SPECIFCATIONS AND SHARING CONTENT
8.1. Pic-Time Software. As part of the Photographer's use of the Platform, it will be required to install the Software (as such term is described in the EULA) that optimizes and enhances the storage utilization and upload of the pictures uploaded to Pic-Time’s Platform. For the End User License Agreement ("EULA") of the uploading Software please read HERE.
8.2. Prior using the Software please read the EULA in the link above, describing the full terms of using such Software.
8.3. AI Specifications. PLEASE READ THE AI FEATURE TERMS AND CONDITIONS HERE, which governs the use of Pic-Time's artificial intelligence ("AI") features ("AI Features") as defined thereunder. The AI Terms governs the specifications of Pic-Time AI Features and is an integral part of this Agreement. IF YOU ARE USING THE AI FEATURES AS PART OF THE SERVICES, YOU ACKNOWLEDGE AND AGREE THAT PIC-TIME HAS NO RESPONSIBILITY OVER THE OUTPUT (AS DEFINED IN THE AI TERMS).
8.4. Sharing Content. By giving permission to third party to view its Content, the Photographer represents and warrants that it is at its sole responsibility and risk that such third party is then able to use, print, etc. such Content and, also, to continue sharing such Content with others.
9. THIRD PARTY SERVICES AND INTEGRATIONS
Photographer may enable third party services and integrations for use with the Services, such as online applications, or services that connect with the Services (“Third Party Services”). Any use by Photographer of such Third-Party Services is solely the responsibility of the Photographer and the applicable third-party provider. By enabling Third-Party Services, Photographer is expressly instructing Pic-Time to obtain all authentications records, Photographer’s confidential data, and personal data, which is necessary to facilitate the integration and provide the Services to the Photographer. Photographer acknowledges that providers of such Third-Party Services may have access to data provided by Photographer in connection with the interoperation and support of such Third-Party Services with the Services. To the extent Photographer authorizes the access or use of a Third-Party Service, such Third-Party Service terms will govern, and Pic-Time shall not be responsible for, any use, disclosure, modification or deletion of such Third-Party Service or for any act or omission on the part of such third-party provider or its service. Pic-Time disclaims any liability or responsibility for errors as a result of the integration with Third Party Service integration, and it is hereby explicitly stated that any errors or omissions which occur due to such integration with Third Party Services are not subject to Pic-Time support services.
10. REPRESENTATIONS AND WARRANTIES
10.1. Each of party represents and warrants that: (a) the Agreement constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms; (b) it has all requisite corporate power and authority to enter into, deliver, and perform its obligations under the Agreement; and (c) the entering into of the Agreement or the performance by it of its obligations under the Agreement do not and will not violate any other obligation or agreement, law or regulation by which it is bound or to which it is subject.
10.2. The Photographer further hereby represents and warrants, as follows: (i) it has full rights and power to upload and display any Content on the Service and that such Content will be original and will not infringe upon any intellectual property or other rights of any person, whether contractual, statutory or common law; (ii) it will not commit any act which brings Pic-Time into public disrepute or which will otherwise disparage or harm us in anyway; and (iii) it will comply with all applicable federal, state and local laws, regulations, and administrative guidelines with respect to its use of the Service and otherwise.
10.3.The Photographer and the Customer represent and warrant that it shall not, nor agree, authorize or encourage any third party to: (i) use the Service in a non-compliant, unlawful, illegal, fraudulent or inappropriate manner; (ii) circumvent, disable or otherwise interfere with security-related features of the Service or prevent others from using the Service; (iii) modify, create a derivative work of, reverse engineer, disassemble the Service; (iv) remove, deface, obscure, or alter the Service or any content therein including any copyright notices, trademarks, or other proprietary rights provided as part of the Service; (v) use the Service to promote, conduct, or contribute to fraudulent, illegal or otherwise inappropriate activities, including without limitation, deceptive impersonation; or (vi) otherwise use the Service in any unlawful manner or in breach of the Agreement.
11. TERM AND TERMINATION
11.1. The term of this Agreement will commerce on the date of your completed registration for use of a Services and continue until terminated by either you or Pic-Time as applicable (“Term”). Pic-Time may terminate the Agreement, your access to all or any part of the Services at any time, with or without cause and with or without notice, effective immediately. Termination of the Agreement will be without prejudice to any rights or obligations which arose prior to the date of termination.
11.2. You may terminate the Agreement and your use of the Services at any time. If you wish to terminate your use of the Services, you may do so by: (i) simply stopping to use the Services; (ii) sending us a request to delete your Account via: support@pic-time.com; or (iii) if you subscribed to a plan, you may terminate such subscription plan in accordance with the Subscription Fees and plan Recurring Payments Section above. Such termination may result in the destruction of all information and data associated with your use of the Service.
11.3. You may cancel your subscription plan, at any time, by sending us an email at support@pic-time.com, at least 5 business days before your next payment date. Should you choose to cancel your subscription plan, your access to such subscription plan and any related features will continue through the end of your billing period, as applicable, and expire thereafter and you may be downgraded to the free Services. To the extent permitted by applicable law, any fees paid for your purchase of a subscription plan are non-refundable and we do not provide refunds for any partial subscriptions. If you have taken advantage of a Free Trial offer, which has not yet expired, the subscription will end immediately.
11.4. Upon the expiry or termination of the Agreement, for whatever reason, all Licenses automatically and without further actions cease to apply and shall revert to Pic-Time and you shall cease your use of the Services.
11.5. All sections detailed herein which by their nature are intended to survive termination, shall survive termination or expiration for any reason.
12. PRIVACY AND DATA PROTECTION
12.1. As part of the Service, we may be required to collect access or process certain information with respect to the Photographer and Customers. Please review our Data Processing Agreement, which has been incorporated herein as an integral part of the Agreement, to learn more regarding how we collect, use and share Personal Data. Our Privacy Policy will apply with respect to any other instances relating to the use of the Service and is also incorporated herein by reference.
13. CONFIDENTIALITY
13.1. For the purpose of the Agreement, “Confidential Information” shall mean any non-public, proprietary, confidential or trade secret information of a party that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive, including, without limitation, business procedures, technology and any related documentation, client or customer lists, developments, business partners or other information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) either directly or indirectly in any form, including, without limitation, in writing or orally.
13.2. Confidential Information shall not include any information which: (i) was known to the Receiving Party or in its possession at the time of disclosure without any confidentiality obligation; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is independently developed by the Receiving Party without reliance on or use of the Confidential Information or any part thereof and the Receiving Party can show written proof of such independent development; (iv) required to be disclosed by applicable law, regulatory authority or a valid court order, provided that the Receiving Party shall provide the Disclosing Party with reasonable prior written notice of the required disclosure in order for the Disclosing Party to obtain a protective order and the disclosure shall be limited to the extent expressly required; (v) is approved for release by prior written authorization of the Disclosing Party; or (vi) the Receiving Party can demonstrate was disclosed by the Disclosing Party to a third party without any obligations of confidentiality.
13.3. During the term of this Agreement and for a period of three (3) years thereafter, each party agrees that it will not disclose or use the Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent. Each party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own Confidential Information, during the term of the Agreement and for a period of one (1) year thereafter to prevent the disclosure of the other party’s Confidential Information other than to its employees, affiliates, subsidiaries or other agents who must have access to such Confidential Information for such party to perform its obligations or exercise its rights hereunder, who will each agree to comply with this section. This Confidentiality Section shall survive any termination or expiration of the Agreement as set forth herein.
14. INTELLECTUAL PROPERTY RIGHTS
14.1. The Service and any part thereof (excluding the Photographer’s Intellectual Property, as defined below) are the exclusive property of Pic-Time and are protected by copyright, trademark and other intellectual property laws and treaties. All rights related to the Service are owned solely by Pic-Time or its licensors and the Agreement do not convey any title or ownership rights to the Photographer. Except as provided herein, Pic-Time retains all right, title and interest in and to the Service and related marks, logos and content, trademarks, service marks, trade names, trade dress, domain names, patents, inventions, trade secrets, copyrights, database rights, including without limitation any derivatives, improvements and modifications thereto, and all other intellectual or industrial proprietary rights (including know-how), therein.
14.2. Except as provided herein, the Photographer retains all right, title and interest in and to the Content and any related marks, logos, and all intellectual property rights therein (“Photographer’s Intellectual Property”). Subject to the terms and conditions of this Agreement, the Photographer grants Pic-Time a revocable, limited, license, during the term of the Agreement, to use the Photographer’s Intellectual Property solely for the purpose of providing the Service under the Agreement.
14.3. If Pic-Time receives any feedback (e.g., questions, comments, suggestions etc.) regarding the Service (“Feedback”), all rights, including Intellectual Property Rights in such Feedback shall belong exclusively to Pic-Time and to the extent required by applicable law, you hereby irrevocably transfer and assign all Intellectual Property Rights you may have in such Feedback to Pic-Time and waive any and all moral rights that you may have in respect thereto.
14.4. Nothing in the Agreement shall be construed as transferring any right, title or interest to you or any third party, unless explicitly stated hereunder. Pic-Time and its licensors reserve any and all rights not expressly granted in the Agreement. The provisions of this section shall remain in full force and effect after termination or expiration of the Agreement for whatever reason.
14.5. As Pic-Time respects the intellectual property, privacy, and publicity rights of others, we are doing efforts to help and prevent infringements or violations. If you (as copyright owner or an agent representing the copyright owner) believe your Content appears on this website without your consent and you wish to have it removed, please write us a request at: legal@Pic-Time.com.
15. COPYRIGHTS POLICY
15.1. We have a clear copyright policy regarding any Content suspected or claimed to be infringing third party’s copyrights, which further incorporates the Digital Millennium Copyright Act of 1998 (“DMCA”). Accordingly, we have registered and appointed a designated agent on behalf of Pic-Time (“Agent”), to handle any complaints regarding copyright infringement. We will respond within a reasonable amount of time to claims of copyright infringement committed using the Service that are reported to the Agent.
15.2. In the event you are a copyright owner, or authorized to act on behalf of one, and you believe in good faith that any Content has been used or exploited in a manner that infringes or violates any work or other intellectual property you own or control or that of a third party which you are authorized to act on its behalf, please report the alleged copyright infringement by submitting a DMCA notice of alleged infringement (“DMCA Notice”).
15.3. You can submit a DMCA Notice by: Sending our Agent, a DMCA notice at: dmca@pic-time.com that includes the following information:
(a) Which copyrighted work or material that you claim has been infringed, sufficient information to enable us to locate the material, including at a minimum, the URL of the link(s) shown on the website where such material may be found and screenshots of such material. If multiple copyrighted works are covered by this DMCA Notice – please provide a representative list of the applicable copyrighted works.
(b) Your contact information – name, mailing address, telephone number, and email address.
(c) Both of the following statements in the body of the DMCA Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material or reference or link to such material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).” “I hereby state that the information in this DMCA Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
(d) A physical or electronic signature of a person authorized to act on behalf of the owner of the applicable copyright that has been allegedly infringed.
15.4. Upon receipt of a valid DMCA Notice (with all the information requested and detailed above), we will remove or disable access to any Content that we believe, in good faith and at our discretion, is infringing the copyrights or other intellectual property rights of third parties, and where applicable, we may notify the alleged infringer that we have removed or disabled access to such Content.
15.5. Be sure to consider whether fair use, fair dealing, or a similar exception to copyright laws applies before you submit the DMCA Notice. Please note that, the submission of a DMCA Notice will trigger a legal process, and therefore, it is important not to make any false claims. In addition, it is important that you keep in mind that when you submit a DMCA Notice, we are relying on the information provided by you. Any person who knowingly misrepresents that certain material, content or an activity is infringing, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, any copyright owner, copyright owner’s authorized licensee or Pic-Time, who was damaged by such misrepresentation. Please remember that there are legal and financial consequences for fraudulent or bad faith submissions. Therefore, before you submit a DMCA Notice, be sure that you are the actual rights’ holder of the content or that you are legally able to represent such rights’ holder and understand the repercussions of submitting a false claim.
16. DISCLAIMER OF WARRANTIES
EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SERVICES AND PLATFORM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. EXCEPT AS PROVIDED HEREIN, PIC-TIME DOES NOT WARRANT THAT THE SERVICE AND PLATFORM WILL OPERATE ERROR-FREE, OR THAT THE PLATFORM OR SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL CODE OR THAT IT WILL CORRECT ANY ERRORS IN THE SERVICE. YOU AGREE THAT PIC-TIME WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS, INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET OR ANY TELECOMMUNICATIONS. WE MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE AND PLATFORM IS OR WILL BE AVAILABLE FOR USE IN ANY PARTICULAR LOCATION OR AT ANY SPECIFIC TIME OR THAT THE PHOTOGRAPHER WILL PROFIT OR DERIVE ANY ECONOMIC BENEFIT FROM THE SERVICE. EXCEPT AS EXPRESSLY STATED HEREIN, PIC-TIME DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SECURITY OF ANY INFORMATION, DATA OR CONTENT YOU MAY PROVIDE OR ACTIVITIES YOU ENGAGE IN DURING THE COURSE OF YOUR USE OF THE SERVICE AND PLATFORM. YOUR USE OF THE SERVICE AND PLATFORM IS AT YOUR OWN RISK AND RESPONSIBILITY. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO TO THAT EXTENT CERTAIN EXCLUSIONS SET FORTH HEREIN MAY NOT APPLY.
17. LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY LAW, PIC-TIME (INCLUDING, WITHOUT LIMITATION, ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, COLLECTIVELY: “AFFILIATES”), AS WELL AS ITS VENDORS, DISTRIBUTORS, THIRD PARTY LICENSORS, OR EQUIPMENT AND SERVICE PROVIDERS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES OR DAMAGES FOR LOST PROFITS, INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, DEVICE FAILURE, OR MALFUNCTION, OR DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PLATFORM OR SERVICES EVEN IF PIC-TIME WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, WE WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY FAILURE TO PERFORM, OR DELAY IN PERFORMANCE OF, ANY OF OUR OBLIGATIONS HEREIN THAT IS CAUSED BY AN EVENT OUTSIDE OF OUR CONTROL (I.E., ANY ACT OR EVENT BEYOND OUR REASONABLE CONTROL). PIC-TIME AND ITS AFFILIATES SHALL BEAR NO RESPONSIBILITY AND SHALL NOT BE HELD LIABLE FOR ANY OF THE CONTENT MADE AVAILABLE VIA ITS SERVICE AND SUCH RESPONSIBILITY OR LIABILITY SHALL BE SOLELY THAT OF THE APPLICABLE PHOTOGRAPHER OR SERVICE PROVIDER AS APPLICABLE. IN NO EVENT SHALL PIC-TIME AND ITS AFFILIATES' AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THE AGREEMENT AND THE SERVICE, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNT OF THE AGGREGATE CONSIDERATION RECEIVED BY PIC-TIME FROM PHOTOGRAPHER IN THE 6 MONTHS PRECEDING THE FIRST CLAIM TO ARISE OUT OF THE AGREEMENT. THIS LIMITATION OF LIABILITY DOES NOT AFFECT PIC-TIME 'S LIABILITY FOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
18. INDEMNIFICATION
18.1. Photographer shall indemnify, defend, and hold Pic-Time and its Affiliates from and against any claim, action, loss, liability, damage, penalty, cost or expense (including reasonable attorney fees) that Pic-Time may suffer or incur as a result of: (a) any failure by the Photographer to comply with the terms of the Agreement; (b) any negligence or willful misconduct of the Photographer; (c) any alleged or actual violations by the Photographer of any applicable law, regulation or rule; or (d) any infringement of third party rights, including intellectual property rights and privacy rights, resulting from the Photographer’s actions or omissions (including the Content). Photographer will fully cooperate with Pic-Time in the defense and settlement of any third-party claim and at Pic-Time 's demand will assume responsibility for the investigation, preparation, defense, trial and settlement of such claim, with the express provision that Photographer will not settle the claim without Pic-Time 's prior written explicit approval.
19. MISCELLANEOUS
19.1. Dispute Resolution, Governing Law and Jurisdiction. In the event of any dispute that you may have with us, you hereby agree to first contact us at: support@pic-time.com and attempt to resolve the dispute with us informally. If we were unable to re-solve the dispute with you informally, we each hereby agree that any dispute, controversy or actions arising out of or relating to the Agreement shall be heard and determined exclusively in any state or federal court located in New York, New York (or in any appellate courts thereof). The Agreement are governed by and construed in accordance with the laws of the State of New York without giving rise to any conflict of law principles therein.
19.2. Relationship of the Parties. Each party hereunder is considered an independent contractor. Nothing herein shall be deemed or construed to create a joint venture, fiduciary or agency relationship between the parties for any purpose.
19.3. Assignment. The Agreement may not be assigned or transferred by you without Pic-Time's prior written consent.
19.4. Force Majeure. Pic-Time shall be liable for any delay or failure to perform if and to the extent that such delay or failure to perform is caused or otherwise brought about by circumstances beyond Pic-Time's reasonable control, including strikes, lockouts, labor troubles, restrictive government or judicial orders or decrees, riots, insurrection, war, terrorism, Acts of God (including a pandemic), and/or inclement weather, which Pic-Time is unable to prevent by the exercise of reasonable due diligence.
19.5. Entire Agreement. The Agreement, including all exhibits hereto and any links included herein, contains the entire agreement of the parties, and supersedes any prior oral or written agreements or understanding between the parties.
19.6. Severability. Should any one or more of the provisions of the Agreement be determined to be invalid, unlawful, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired by such determination and will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
19.7. Waiver. Any delay or omission by either party to exercise any right under the Agreement shall not be construed to be a waiver of such right. A waiver by either party of any of the performance provisions of the Agreement shall not be construed to be a waiver of any succeeding performance or breach.
19.8. Contact Us. For questions regarding your Account, please contact us at: support@pic-time.com; If you have any general questions with respect to the Agreement please contact as at: info@pic-time.com.
