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PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS.
Last Updated: October 1, 2019
Fotisto provides an online platform that connects Photographers with Clients seeking to utilize Photography Services (collectively, the "Services"), which Services are accessible at www.Fotistopk.com and any other websites through which Fotisto makes the Services available (collectively, the "Site") as well as applications for mobile, tablet and other smart devices and application program interfaces, as applicable (collectively, the "Application").
These Terms of Service are between you and Fotisto. Fotisto is hereinafter referred to as "Fotisto", "we", "us", or "our".
"Photography Services" includes but is not limited to the following services performed by Photographers: arranging and conducting photo shoots, image editing, image uploading, and subsequent image file delivery. Photography Services are provided by Photographers as independent contractors, who are solely responsible for acquiring and utilizing appropriate photography equipment, and other tools and equipment necessary and appropriate to perform Photography Services. YOU ACKNOWLEDGE THAT FOTISTO DOES NOT PROVIDE PHOTOGRAPHY SERVICES OR FUNCTION AS A PHOTOGRAPHER AS DEFINED HEREIN. Our Services exclude Photography Services. Unless otherwise agreed by Fotisto, the Photographer and the Client, all Photographer Services are made available and are to be rendered for your personal, noncommercial use.
"Fotisto Content" means all Content that Fotisto owns or to which Fotisto has a license to use and makes available through the Site, Application, Services, or its related promotional campaigns and official social media channels, including any Content licensed from a third party, but excluding Member Content.
"Booking Request Period" means the time period starting from the time when a booking is requested by a Client (as determined by Fotisto in its sole discretion), within which a Photographer may decide whether to confirm or reject that booking request, as stated on the Site, Application or Services. Different Booking Request Periods may apply in different locations.
"Collective Content" means Member Content and Fotisto Content.
"Content" means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.
"Client" means a Member who requests from a Photographer a booking of a Listing via the Site, Application or Services, or a Member who uses Photography Services and is not the Photographer for the associated Listing.
"Photographer" means a Member who creates a Listing via the Site, Application and Services, and intends to perform Photography Services.
"Listing" means a listing for Photography Services by a Photographer as available for booking via the Site, Application, and Services.
"Member" means a person who completes Fotisto's account registration process, including but not limited to Photographers and Clients, as described under "Account Registration" below.
"Member Content" means all Content that a Member posts, uploads, publishes, submits, transmits, or includes in their Listing, Member profile or Fotisto promotional campaign to be made available through the Site, Application or Services.
"Tax" or "Taxes" mean any sales taxes, or fees (such as location reservation or use permit fees) that Photography Services providers may be required by law to collect and remit to governmental agencies, and other similar municipal, state, federal and national indirect or other withholding and personal or corporate income taxes.
In addition, certain areas of the Site and Application (and your access to or use of certain aspects of the Services or Collective Content) may have different terms and conditions, standards, guidelines, or policies posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Application, Services, or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Application, Services, or Collective Content.
If you do not agree to these Terms, you have no right to obtain information from or otherwise continue using the Site, Application or Services. Failure to use the Site, Application or Services in accordance with these Terms may subject you to civil and criminal penalties.
THE SITE, APPLICATION AND SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH PHOTOGRAPHERS MAY CREATE LISTINGS FOR PHOTOGRAPHY SERVICES AND CLIENTS MAY LEARN ABOUT AND BOOK PHOTOGRAPHY SERVICES DIRECTLY WITH THE PHOTOGRAPHERS. YOU UNDERSTAND AND AGREE THAT FOTISTO IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN PHOTOGRAPHERS AND CLIENTS, NOR IS FOTISTO A PHOTOGRAPHY BROKER, AGENT, EMPLOYER, OR INSURER. FOTISTO HAS NO CONTROL OVER THE CONDUCT OF PHOTOGRAPHERS, CLIENTS AND OTHER USERS OF THE SITE, APPLICATION AND SERVICES OR ANY PHOTOGRAPHY SERVICES, AND DISCLAIMS ANY AND ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW.
IF YOU CHOOSE TO CREATE A LISTING ON FOTISTO, YOU UNDERSTAND AND AGREE THAT YOUR RELATIONSHIP WITH FOTISTO IS LIMITED TO BEING A MEMBER AND AN INDEPENDENT, THIRD-PARTY CONTRACTOR, AND NOT AN EMPLOYEE, AGENT, JOINT VENTURER OR PARTNER OF FOTISTO FOR ANY REASON, AND YOU ACT EXCLUSIVELY ON YOUR OWN BEHALF AND FOR YOUR OWN BENEFIT, AND NOT ON BEHALF OF OR FOR THE BENEFIT OF FOTISTO. FOTISTO DOES NOT CONTROL, AND HAS NO RIGHT TO CONTROL, YOUR LISTING, YOUR OFFLINE ACTIVITIES ASSOCIATED WITH YOUR LISTING, OR ANY OTHER MATTERS RELATED TO ANY LISTING, THAT YOU PROVIDE. AS A MEMBER YOU AGREE NOT TO DO ANYTHING TO CREATE A FALSE IMPRESSION THAT YOU ARE ENDORSED BY, PARTNERING WITH, OR ACTING ON BEHALF OF OR FOR THE BENEFIT OF FOTISTO, INCLUDING BY INAPPROPRIATELY USING ANY FOTISTO INTELLECTUAL PROPERTY.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE, APPLICATION OR SERVICES OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE, VIA THE APPLICATION OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS AND RECEIVE OUR SERVICES, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE AND APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, APPLICATION, SERVICES, OR COLLECTIVE CONTENT. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, "you" and "your" will refer and apply to that company or other legal entity.
Fotisto reserves the right, at its sole discretion, to modify the Site, Application or Services or to modify these Terms, including the Service Fees, at any time and without prior notice. If we modify these Terms, we will either post the modification on the Site or via the Application or otherwise provide you with notice of the modification. We will also update the "Last Updated" date at the top of these Terms. By continuing to access or use the Site, Application or Services after we have posted a modification on the Site or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site, Application and Services.
The Site, Application and Services are intended solely for persons who are 18 or older. Any access to or use of the Site, Application or Services by anyone under 18 is expressly prohibited. By accessing or using the Site, Application or Services you represent and warrant that you are 18 or older.
For users in the United States, Fotisto may, to the extent permitted by applicable laws and if we have sufficient information to identify a user, obtain reports from public records of criminal convictions or sex offender registrations of the user. For users outside the United States, we may, to the extent permitted by applicable laws and if we have sufficient information to identify a user, obtain the local version of background or registered sex offender checks in our sole discretion. You agree and authorize us to use your personal information, such as your full name and date of birth, to obtain such reports, including from Fotisto's vendors.
The Site, Application and Services can be used to facilitate the listing and booking of Photography Services. Such Photography Services are included in Listings on the Site, Application and Services by Photographers. You may view Listings as an unregistered visitor to the Site, Application and Services; however, if you wish to book Photography Services or create a Listing, you must first register to create a Fotisto Account (defined below).
As stated above, Fotisto makes available an online platform or marketplace with related technology for Clients and Photographers to meet online and arrange for bookings of Photography Services directly with each other. Fotisto is not an owner, operator, or provider of Photography Services. Unless explicitly specified otherwise in the Fotisto platform, Fotisto's responsibilities are limited to facilitating the availability of the Site, Application and Services.
PLEASE NOTE THAT, AS STATED ABOVE, THE SITE, APPLICATION AND SERVICES ARE INTENDED TO BE USED TO FACILITATE PHOTOGRAPHERS AND CLIENTS CONNECTING AND BOOKING PHOTOGRAPHY SERVICES DIRECTLY WITH EACH OTHER. FOTISTO CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY LISTINGS AND THE CONDITION, LEGALITY OR SUITABILITY OF ANY PHOTOGRAPHY SERVICES. FOTISTO IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS AND PHOTOGRAPHY SERVICES. ACCORDINGLY, ANY BOOKINGS WILL BE MADE OR ACCEPTED SOLELY AT THE MEMBER'S OWN RISK.
In order to access certain features of the Site and Application, and to book Photography Services or create a Listing, you must register to create an account ("Fotisto Account") and become a Member. You may register to join the Services directly via the Site or Application or as described in this section.
You can also register to join by logging into your account with certain third-party social networking sites ("SNS") (including, but not limited to, Facebook; each such account, a "Third-Party Account"), via our Site or Application, as described below. As part of the functionality of the Site, Application and Services, you may link your Fotisto Account with Third-Party Accounts, by either: (i) providing your Third-Party Account login information to Fotisto through the Site, Services or Application; or (ii) allowing Fotisto to access your Third-Party Account, as permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Fotisto and/or grant Fotisto access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Fotisto to pay any fees or making Fotisto subject to any usage limitations imposed by such third-party service providers. By granting Fotisto access to any Third-Party Accounts, you understand that Fotisto will access, make available and store (if applicable) any Content that you have provided to and stored in your Third-Party Account ("SNS Content") so that it is available on and through the Site, Services and Application via your Fotisto Account and Fotisto Account profile page. Unless otherwise specified in these Terms, all SNS Content, if any, will be considered to be Member Content for all purposes of these Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts will be available on and through your Fotisto Account on the Site, Services and Application. Please note that if a Third-Party Account or associated service becomes unavailable or Fotisto's access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Site, Services and Application. You have the ability to disable the connection between your Fotisto Account and your Third-Party Accounts, at any time, by accessing the "Settings" section of the Site and Application. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS. Fotisto makes no effort and has no obligation to review any SNS Content for any purpose, including but not limited to for accuracy, legality or non-infringement and Fotisto is not responsible for any SNS Content.
Your Fotisto Account and your Fotisto Account profile page will be created for your use of the Site and Application based upon the personal information you provide to us or that we obtain via an SNS as described above. You may not have more than one (1) active Fotisto Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Fotisto reserves the right to suspend or terminate your Fotisto Account and your access to the Site, Application and Services if you create more than one (1) Fotisto Account, or if any information provided during the registration process or thereafter proves to be inaccurate, fraudulent, not current, incomplete, or otherwise in violation of these Terms of Service.
As a Member, you may create Listings. To create a Listing, you will be asked a variety of questions about the Photography Services to be listed, including, but not limited to, the location, features, and availability of the Photography Services and pricing and related rules and financial terms. Listings will be made publicly available via the Site, Application and Services. You understand and agree that the placement or ranking of Listings in search results may depend on a variety of factors, including, but not limited to, Client and Photographer preferences, ratings and/or ease of booking.
Other Members will be able to book your Photography Services via the Site, Application and Services based upon the information provided in your Listing, your Client requirements, and Clients' search parameters and preferences. You understand and agree that once a Client requests a booking of your Photography Services, you may not request the Client to pay a higher price than in the booking request.
You acknowledge and agree that you alone are responsible for any and all Listings and Member Content you post. Accordingly, you represent and warrant that any Listing you post and the booking of, or a Client's use of, Photography Services in a Listing you post (i) will not breach any agreements you have entered into with any third parties, such as other photography agreements, and (ii) will (a) be in compliance with all applicable laws, Tax requirements, Intellectual Property laws, and rules and regulations that may apply to any Photography Services included in a Listing you post (including having all required permits, licenses and registrations), and (b) not conflict with the rights of third parties.
Please note that Fotisto assumes no and shall be held harmless to the greatest extent of the law from responsibility for a Photographer's compliance with any agreements with or duties to third parties, applicable laws, rules and regulations. Fotisto reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that Fotisto, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or Fotisto's then-current policies and guidelines, or otherwise harmful to the Site, Application or Services. If you are a Photographer, you understand and agree that Fotisto does not act as an insurer, employer, contractor, broker or as your contracting agent. If a Client requests a booking of your Photography Services and uses your Photography Services, any agreement you enter into with such Client is between you and the Client and Fotisto is not a party to it. You further agree to indemnify and hold Fotisto harmless from any and all claims, losses, fines, judgments, demands arising from or made in connection with your performance or non-performance of Photography Services.
Fotisto recommends that Photographers obtain appropriate insurance for their Photography Services/Equipment/Studio. Please review any insurance policy that you may have for your Photography Services/Equipment/Studio/business carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Clients (and the individuals the Client invites to the Photography Services, if applicable) while using your Photography Services.
Fotisto reserves the right to use of images uploaded by Photographers to the Site and/or purchased/acquired by Clients, whether in the Listing or Client Photo Gallery, for its own advertising, marketing, commercial and other business purposes in any media or platform, whether in relation to your Listing or otherwise, without further notice or compensation.
Fotisto does not endorse any Member, Listing or Photography Services. Members are required by these Terms to provide accurate information. Although Fotisto may, for transparency or fraud prevention or detection purposes, directly or through third parties, ask you to provide a form of government identification, your date of birth, and other information, or undertake additional checks and processes designed to help verify or check the identities or backgrounds of Members and/or screen Member information against third party databases or other sources, we do not make any representations about, confirm, or endorse any Member or the Member's purported identity or background.
By registering for a Fotisto Account, you agree that Fotisto may - but is not obligated to - request a consumer report on you from a Consumer Reporting Agency. If we do request a consumer report, we'll request and use it in compliance with applicable law, including the Fair Credit Reporting Act.
Any references in the Site, Application or Services to a Member being "verified" or "connected" (or similar language) only indicate that the Member has completed a relevant verification or identification process, and does not represent anything else. Any such description is not an endorsement, certification or guarantee by Fotisto about any Member, including of the Member's identity and whether the Member is trustworthy, safe or suitable. Instead, any such description is intended to be useful information for you to evaluate when you make your own decisions about the identity and suitability of others whom you contact or interact with via the Site, Application and Services. We therefore recommend that you always exercise due diligence and care when deciding whether to use a Photographer or to accept or approve a booking request from a Client, or to have any other interaction with any other Member.
By using the Site, Application or Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Members or other third parties will be limited to a claim against the particular Members or other third parties who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy from Fotisto with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with other Members on the Site and Services regarding any bookings or Listings made by you. This limitation shall not apply to any claim by a Photographer against Fotisto regarding the remittance of payments received from a Client by Fotisto on behalf of a Photographer, which instead shall be subject to the limitations described in the section below entitled "Limitation of Liability".
"Photography Services Fees" means the amounts that are due and payable by a Client in exchange for that Client's use of Photography Services. The Photographer alone, and not Fotisto, is responsible for claiming, collecting and/or enforcing the Photography Services Fees for his or her Listing. The Photographer may in his or her sole discretion decide to include in these amounts taxes that the Photographer determines that he or she has to collect. "Client Fees" means the fee that Fotisto charges a Client for the use of the Services, which is calculated as a percentage of the applicable Photography Services Fees. The Client Fees will be displayed to the Client when the Client is asked whether to send a booking request to a Photographer.
"Photographer Fees" means the fee that Fotisto charges a Photographer for the use of the Services, which is calculated as a percentage of the applicable Photography Services Fees. The Photographer Fees will be displayed to the Photographer when the Photographer is asked whether to confirm or reject a booking request from a prospective Client.
"Payment Method" means a payment method that you have added to your Fotisto Account, such as a credit card, debit card or PayPal. "Service Fees" means collectively the Client Fees and the Photographer Fees. "Total Fees" means collectively the Photography Services Fees and the Client Fees plus any Taxes.
If you are a Photographer and a booking is requested for your Photography Services via the Site, Application or Services, you will be required to either confirm or reject the booking request within the Booking Request Period, otherwise the booking request will automatically expire. When a booking is requested via the Site, Application or Services, we will share with you the first and last name of the Client who has requested the booking and their contact details. When you confirm a booking requested by a Client, Fotisto will send you an email, text message or message via the Application confirming such booking, depending on the selections you make via the Site, Application and Services, as may be made available on the Site, Application and Services by Fotisto.
Each Photographer agrees that Fotisto may, in accordance with the Cancellation Policy (i) permit the Client to cancel the booking and (ii) refund to the Client that portion of the Photography Services Fees specified in the Cancellation Policy.
The Photographers, not Fotisto, are solely responsible for honoring any confirmed bookings and making available any Photography Services reserved through the Site, Application and Services. If you, as a Client, choose to enter into a transaction with a Photographer for the booking of Photography Services, you agree and understand that you will be required to enter into an agreement with the Photographer and you agree to accept any terms, conditions, rules and restrictions associated with such Photography Services imposed by the Photographer. You acknowledge and agree that you, and not Fotisto, will be responsible for performing the obligations of any such agreements, that Fotisto is not a party to such agreements, and that Fotisto disclaims all liability arising from or related to any such agreements.
The Total Fees payable will be displayed to a Client before the Client sends a booking request to a Photographer. As noted above, the Photographer is required to either confirm or reject the booking request within the Booking Request Period; otherwise, the requested booking will be automatically cancelled.
After the booking request is accepted by the Photographer, Fotisto will request payment from the Client. You as a Client agree to pay the Total Fees for any booking requested, and in most cases confirmed, in connection with your Fotisto Account. Fotisto will collect the Total Fees pursuant to the Payments Terms.
Once your payment is processed, the booking is confirmed and you will receive a confirmation email and receipt summarizing the schedule and payment details of your booking.
In consideration for the use of Fotisto's online marketplace and platform, Fotisto charges Service Fees. Fotisto collects these Service Fees pursuant to the Payments Terms., and, where applicable, may also collect Taxes in respect of the Photographer Fees and Client Fees. Fotisto deducts the Photographer Fees from the Photography Services Fees before remitting the balance to the Photographer as described in the Payments Terms. Client Fees are, as noted above, included in the Total Fees.
More information on any such costs or deductions will be available via the Site and Application. More information on Services Fees can be found at www.Fotisto.com/help . Except as otherwise provided herein, Service Fees are non-refundable.
Any Photographer who is late shall extend the photographer session time on a 1:1 basis for each minute late in arriving. If Photography Services are scheduled back-to-back, it is expected that the photographer shall notify subsequent Clients about the delay.
Cancellations and Refunds; Cancellation Policy
If, as a Client, you wish to cancel a confirmed booking made via the Site, Application and Services, prior to the Photography Services, the cancellation policy of the Photographer contained in the applicable Listing will apply to such cancellation. The Client Fee is non-refundable Fotisto will initiate any refunds due pursuant to the Payments Terms.
If a Photographer cancels a confirmed booking made via the Site, Services, and Application, (i) Fotisto will refund the Total Fees for such booking to the applicable Client pursuant to the Payments Terms and (ii) the Client will receive an email or other communication from Fotisto containing alternative Listings and other related information. If the Client requests a booking from one of the alternative Listings and the Photographer associated with such alternative Listing confirms the Client's requested booking, then the Client agrees to pay Fotisto the Total Fees relating to the confirmed booking for the Photography Services in the alternative Listing, in accordance with these Terms. If a Photographer cancelled a confirmed booking and you, as a Client, have not received an email or other communication from Fotisto, please contact Fotisto.
If, as a Photographer, you cancel a confirmed booking, you agree that Fotisto may apply penalties or consequences to you or your Listing, including (i) publishing an automated review on your Listing indicating that a booking was cancelled, (ii) keeping the calendar for your Listing unavailable or blocked for the dates of the cancelled booking, or (iii) imposing a cancellation fee. You will be notified of the situations in which a cancellation fee applies before you decide to cancel.
In certain circumstances, Fotisto may decide, in its sole discretion, that it is necessary or desirable to cancel a confirmed booking made via the Site, Application and Services. This may be for extenuating circumstances or for any other reason. Fotisto may also determine, in its sole discretion, to refund to the Client part or all of the amounts charged to the Client. You agree that Fotisto and the relevant Client or Photographer will not have any liability for such cancellations or refunds.
All cancellations made 48 hours in advance of Photography Services will be fully refunded to the Client. Within 48-hours of the scheduled Photography Services:
If a Client cancels the Photography Services, the Client will forfeit the Client Fee and 25% of the price paid for the Photography Services, paid directly to the Photographer. The 25% cancellation fee is to compensate the Photographer for the lost opportunity to book a replacement session and shall not be construed as an unreasonable penalty.
If a Photographer cancels the Photography Services, the Client will receive a full refund and also a credit for 25% of the price paid for Photography Services, up to a maximum of $50. The Photographer will receive a penalty on his/her account in this same amount. Multiple cancellations may result in an automatic review and/or removal from the Site.
If a Client fails to cancel Photography Services and does not show for scheduled Photography Services, the Client forfeits the entire amount paid.
Weather: Either the Photographer or Client may request to reschedule the session due to weather. If it is not possible to conduct Photography Services due to weather, Photographer and Client will reschedule for a mutually agreeable date, with no additional charge.
Illness: Either the Photographer or Client may request to reschedule the session due to illness, as documented by a physician. If it is not possible to conduct Photography Services due to illness, Photographer and Client will reschedule on an agreed date, with no additional charge.
Any Client who is late arriving to Photography Services will have the Photography Session time reduced on a 1:1 basis for each minute late in arriving. This may also result in a reduction of the number of images delivered.
Fotisto may, in its sole discretion, round up or round down amounts that are payable from or to Clients or Photographers to the nearest whole functional base unit in which the currency is denominated (e.g. to the nearest dollar, euro or other supported currency); for example, Fotisto will round up an amount of $101.50 to $102.00, and $101.49 to $101.00.
Some currencies are denominated in large numbers. In those cases, Fotisto may determine the functional base unit in which those currencies are denominated to be 10, 100 or 1,000 of the currency; the corresponding examples for such currencies would be for Fotisto to round up an amount of 1,045 up to 1,050 and 1,044 down to 1,040, or 35,450 up to 35,500 and 35,449 down to 35,400, or 837,500 up to 838,000 and 837,499 down to 837,000.
Some Photographers may pledge to donate a portion of the funds they receive from confirmed bookings made via the Site, Application and Services to a particular cause or charity. We do not take any responsibility or liability for whether the Photographer does in fact make the donation he or she pledged to make. In such cases, the Photographer in question is responsible for his or her own compliance with all laws and regulations applicable to such pledges and/or fund-raising.
You as a Client or Photographer are responsible for any modifications to a booking that you direct Fotisto Customer Service to make ("Booking Modifications"), and you agree to pay any Photography Services Fees, Client Fees, Services Fees, and/or Taxes associated with such Booking Modifications.
Tax regulations may require us to collect appropriate tax information from our Photographers, or to withhold taxes from payouts to Photographers, or both. You as a Photographer are solely responsible for keeping the information in your tax forms current, complete and accurate. If you as a Photographer fail to provide us with documentation that we determine to be sufficient to alleviate our obligation (if any) to withhold taxes from payments to you (e.g. where you are a US Photographer and you fail to provide us with a completed IRS Form W--9), we reserve the right in our sole discretion to freeze all payouts to you until resolution, to withhold such amounts as required by law, or to do both.
You as a Photographer understand and agree that you are solely responsible for determining (i) your applicable Tax reporting requirements, and (ii) the Taxes that should be included, and for including Taxes to be collected or obligations relating to applicable Taxes in Listings. You are also solely responsible for remitting to the relevant authority any Taxes included or received by you. Fotisto cannot and does not offer Tax-related advice to any Members.
Fotisto currently only allows bookings between Clients and Photographers to be transacted in U.S. Dollars.
As a Client, you are responsible for leaving the Photographers’ Studios and Equipment in the condition it was in when you arrived. You acknowledge and agree that, as a Client, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals whom you invite to, or otherwise provide access to, the Photography Services. In the event that a Photographer claims otherwise and provides evidence of damage ("Damage Claim"), including but not limited to photographs, particularized description of damage, you agree to pay the cost of replacing the damaged items with equivalent items.
If a Photographer makes a Damage Claim for a confirmed booking of a Photography Services, you as a Client will be notified of any Damage Claim and given forty-eight (48) hours to respond. Fotisto reserves the right, in its sole discretion, to suspend or terminate your Client account and preclude you from creating new bookings until or unless it can be determined that a Damage Claim has been fully resolved.
Both Clients and Photographers agree to cooperate with and assist Fotisto in good faith, and to provide Fotisto with such information and take such actions as may be reasonably requested by Fotisto, in connection with any Damage Claims or other complaints or claims made by Members relating to Photography Services or any personal or other property located at the Photography Services location or with respect to any investigation undertaken by Fotisto or a representative of Fotisto regarding use or abuse of the Site, Application or the Services. If you are a Client, upon Fotisto's reasonable request, and to the extent you are reasonably able to do so, you agree to participate in mediation or similar resolution process with a Photographer, at no cost to you, which process will be conducted by Fotisto or a third party selected by Fotisto or its insurer, with respect to losses for which the Photographer is requesting payment from Fotisto.
violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, and Tax regulations;
infringe upon or otherwise violate the rights of the lawful holder of copyright protections;
use manual or automated software, devices, scripts, robots, backdoors or other means or processes to access, "scrape," "crawl" or "spider" any web pages or other services contained in the Site, Application, Services or Collective Content;
use the Site, Application, Services or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies Fotisto endorsement, partnership or otherwise misleads others as to your affiliation with Fotisto;
dilute, tarnish or otherwise harm the Fotisto brand in any way, including through unauthorized use of Collective Content, registering and/or using Fotisto or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Fotisto domains, trademarks, taglines, promotional campaigns or Collective Content
copy, store or otherwise access or use any information contained on the Site, Application, Services or Collective Content for purposes not expressly permitted by these Terms;
infringe the rights of Fotisto or the rights of any other person or entity, including without limitation, their intellectual property, privacy, publicity or contractual right;
interfere with or damage our Site, Application or Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
use our Site, Application or Services to transmit, .ribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers
use our Site, Application, Services or Collective Content in connection with the .ribution of unsolicited commercial email ("spam") or advertisements unrelated to lodging in a private residence;
"stalk" or harass any other user of our Site, Application, Services or Collective Content, or collect or store any personally identifiable information about any other user other than for purposes of transacting as a Fotisto Client or Photographer;
offer, as a Photographer, any Photography Services that you do not yourself perform or have permission to sell;
register for more than one Fotisto Account or register for an Fotisto Account on behalf of an individual other than yourself;
unless Fotisto explicitly permits otherwise, request or book Photography Services if you will not actually be using the Photography Services yourself;
contact another Member for any purpose other than asking a question related to a Booking, Photography Services, Listing, or the Member's use of the Site, Application and Services;
recruit or otherwise solicit any Photographer or other Member to join third-party services or websites that are competitive to Fotisto, without Fotisto's prior written approval;
recruit or otherwise solicit any Member to join third-party services, applications or websites, without our prior written approval;
impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
use automated scripts to collect information from or otherwise interact with the Site, Application, Services or Collective Content;
use the Site, Application, Services or Collective Content to find a Photographer or Client and then complete a booking of an Photography Services independent of the Site, Application or Services, in order to circumvent the obligation to pay any Service Fees related to Fotisto's provision of the Services or for any other reasons;
as a Photographer, submit any Listing with false or misleading information, including price information, or submit any Listing with a price that you do not intend to honor;
violate these Terms or Fotisto's then-current policies, guidelines and standards;
engage in disruptive, circumventive, abusive or harassing behavior in any area or aspect of our Platform, Application, or Services;
post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
systematically retrieve data or other content from our Site, Application or Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
use, display, mirror or frame the Site, Application, Services or Collective Content, or any individual element within the Site, Application, Services or Collective Content, Fotisto's name, any Fotisto trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Site, Application or Services, without Fotisto's express written consent;
access, tamper with, or use non-public areas of the Site, Application or Services, Fotisto's computer systems, or the technical delivery systems of Fotisto's providers;
attempt to probe, scan, or test the vulnerability of any Fotisto system or network or breach any security or authentication measures;
avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Fotisto or any of Fotisto's providers or any other third party (including another user) to protect the Site, Services, Application or Collective Content;
forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services, Application or Collective Content to send altered, deceptive or false source-identifying information;
attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services, Application or Collective Content;
advocate, encourage, or assist any third party in doing any of the foregoing; or
accept or make a payment for Photography Services Fees outside Fotisto. If you do so, you acknowledge and agree that you: (i) would be in breach of these Terms; (ii) accept all risks and responsibility for such payment, and (iii) hold Fotisto harmless from any liability for such payment.
If you stay with or Photographer anyone who you feel is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other .urbing conduct, you should immediately report such person to the appropriate authorities and then to Fotisto by contacting us with your police station and report number; provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you.
The Site, Application, Services, and Collective Content are protected by copyright, trademark, and other laws of the Pakistan and foreign countries. You acknowledge and agree that the Site, Application, Services and Collective Content, including all associated intellectual property rights, are the exclusive property of Fotisto and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Application, Services, or Collective Content. All trademarks, service marks, logos, trade names, and any other proprietary designations of Fotisto used on or in connection with the Site, Application, Services, and Fotisto Content are trademarks or registered trademarks of Fotisto in the US and abroad. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Site, Application, Services, and Fotisto Content are used for identification purposes only and may be the property of their respective owners. As a Photographer, Client, or Member, you understand and agree that you are bound by the additional Terms, Guidelines and Policies that apply to your use of the Site, Application, Services and Collective Content.
Certain Member Content is protected by copyright, trademark and other laws of the Pakistan and foreign countries. You acknowledge and agree that such Member Content, including all associated intellectual property rights, are the exclusive property of such Member and his/her licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying Member Content. All trademarks, service marks, logos, trade names, and any other proprietary designations of Members used on or in connection with Member Content are or may be trademarks or registered trademarks of such Member in the US and abroad. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Member Content are used for identification purposes only and may be the property of their respective owners.
Our Site, Application and Services have different products, features and offerings, so sometimes additional terms or product requirements may apply to your use of those products, features or offerings. For example, additional terms apply if you refer new users to Fotisto ("Referral Program"). If additional terms are available for the relevant product or Services you use, those additional terms become part of these Terms.
Subject to your compliance with these Terms, Fotisto grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on each mobile device or computer that you own or control and run such copy of the Application solely for your own personal use. Furthermore, with respect to any Apple App Store Sourced Application (defined below), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple's proprietary operating system) and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. Fotisto reserves all rights in the Application not expressly granted to you by these Terms. This section shall apply to the Application if or when made available and shall not create any obligation the part of Fotisto to create or make the Application available.
Subject to your compliance with these Terms, Fotisto grants you a limited, non-exclusive, non-transferable license, to (i) access and view any Fotisto Content solely for your personal and non-commercial purposes and (ii) access and view any Member Content to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, .ribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site, Application, Services, or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Fotisto or its licensors, except for the licenses and rights expressly granted in these Terms.
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through the Site, Application, Services, or through Fotisto promotional campaigns, you hereby grant to Fotisto a worldwide, irrevocable, perpetual (or for the term of the protection), non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, .ribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content on, through, by means of or to promote or market the Site, Application and Services. Fotisto does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application, Services or through Fotisto promotional campaigns. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application, Services or through Fotisto promotional campaigns or you have all rights, licenses, consents and releases that are necessary to grant to Fotisto the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Fotisto's use of the Member Content (or any portion thereof) on, through or by means of the Site, Application, the Services or Fotisto promotional campaigns will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
The Site, Application and Services may contain links to third-party websites or resources. You acknowledge and agree that Fotisto is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Fotisto of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.
Fotisto respects copyright law and expects its users to do the same. It is Fotisto's policy to terminate in appropriate circumstances the Fotisto Accounts of Members or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
This Agreement shall be effective for a 30-day term, at the end of which it will automatically and continuously renew for subsequent 30-day terms until such time when you or Fotisto terminate the Agreement as described below.
You may terminate this Agreement at any time via the "Cancel Account" feature on the Site or by sending us an email. If you cancel your Fotisto Account as a Photographer, any confirmed bookings will be automatically cancelled and your Clients will receive a full refund. If you cancel your Fotisto Account as a Client, any confirmed booking will be automatically cancelled and any refund will depend upon the terms of the applicable cancellation policy.
Without limiting our rights specified below, Fotisto may terminate this Agreement for convenience at any time by giving you 30 days' notice via email to your registered email address.
Fotisto may immediately, without notice terminate this Agreement if (i) you have materially breached these Terms or our Policies, including but not limited to any breach of your warranties outlined in these Terms or breach of the "User Conduct" provisions in these Terms, (ii) you have provided inaccurate, fraudulent, outdated or incomplete information during the Fotisto Account registration, or Listing process or thereafter, (iii) you have violated applicable laws, regulations or third party rights, or (iv) Fotisto believes in good faith that such action is reasonably necessary to protect the safety or property of other Members, Fotisto or third parties, for fraud prevention, risk assessment, security or investigation purposes.
In addition Fotisto may deactivate or delay Listings, reviews, or other Member Content, cancel any pending or confirmed bookings, limit your use of or access to your Fotisto Account and the Site, Application or Services, temporarily or permanently revoke any special status associated with your Fotisto Account, or temporarily or permanently suspend your Fotisto Account if (i) you have breached these Terms or our Policies, including material and non-material breaches and receiving poor ratings from Photographers or Clients, or (ii) Fotisto believes in good faith that such action is reasonably necessary to protect the safety or property of Members, Fotisto or third parties, for fraud prevention, risk assessment, security or investigation purposes.
In case of non-material breaches and where appropriate, you will be given notice of any measure by Fotisto and an opportunity to resolve the issue to Fotisto's reasonable satisfaction.
If we take any of the measures described above we may (i) communicate to your Clients or Photographers that a pending or confirmed booking has been cancelled, (ii) refund your Clients in full for any and all confirmed bookings, irrespective of preexisting cancellation policies, (iii) support your Clients, on an exceptional basis, in finding potential alternative Photography Services, and (iv) you will not be entitled to any compensation for confirmed bookings that were cancelled.
If you or we terminate this Agreement, we do not have an obligation to delete or return to you any of your Member Content, including but not limited to any reviews or Feedback. When this Agreement has been terminated, you are not entitled to a restoration of your Fotisto Account or any of your Member Content. If your access to or use of the Site, Application and Services has been limited or your Fotisto Account has been suspended or this Agreement has been terminated by us, you may not register a new Fotisto Account or attempt to access and use the Site, Application and Services through other Fotisto Accounts.
If you or we terminate this Agreement, the clauses of these Terms that reasonably should survive termination of the Agreement will remain in effect.
IF YOU CHOOSE TO USE THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT OR PARTICIPATE IN THE REFERRAL PROGRAM, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT FOTISTO DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND OR REGISTERED SEX OFFENDER CHECKS ON ANY MEMBER, INCLUDING, BUT NOT LIMITED TO, CLIENTS AND PHOTOGRAPHERS, BUT MAY CONDUCT SUCH BACKGROUND OR REGISTERED SEX OFFENDER CHECKS IN ITS SOLE DISCRETION. IF WE CHOOSE TO CONDUCT SUCH CHECKS, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, THAT SUCH CHECKS WILL IDENTIFY PRIOR MISCONDUCT BY A USER OR GUARANTEE THAT A USER WILL NOT ENGAGE IN MISCONDUCT IN THE FUTURE.
THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT AND REFERRAL PROGRAM ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, FOTISTO EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FOTISTO MAKES NO WARRANTY THAT THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT, INCLUDING, BUT NOT LIMITED TO, THE LISTINGS OR ANY PHOTOGRAPHY SERVICES, OR THE REFERRAL PROGRAM WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. FOTISTO MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, PHOTOGRAPHY SERVICES, PHOTOGRAPHERS, CLIENTS, YOUR ACCRUAL OF FOTISTO TRAVEL CREDITS, THE SERVICES OR COLLECTIVE CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE SITE, APPLICATION, SERVICES OR REFERRAL PROGRAM.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FOTISTO OR THROUGH THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY PHOTOGRAPHERS OR CLIENTS. YOU UNDERSTAND THAT FOTISTO DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE, APPLICATION OR SERVICES OR TO REVIEW OR VISIT ANY PHOTOGRAPHY SERVICES. FOTISTO MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE, APPLICATION OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE, APPLICATION OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, CLIENTS AND PHOTOGRAPHERS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON REGARDLESS OF WHETHER SUCH MEETINGS ARE ORGANIZED BY FOTISTO. FOTISTO EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY CLIENT OR OTHER THIRD PARTY.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION, SERVICES AND COLLECTIVE CONTENT, YOUR LISTING OR BOOKING OF ANY PHOTOGRAPHY SERVICES VIA THE SITE, APPLICATION AND SERVICES, YOUR PARTICIPATION IN THE REFERRAL PROGRAM, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF FOTISTO WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. NEITHER FOTISTO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT OR THE REFERRAL PROGRAM WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL .RESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATION, OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION, SERVICES, OR YOUR PARTICIPATION IN THE REFERRAL PROGRAM OR FROM YOUR LISTING OR BOOKING OF ANY PHOTOGRAPHY SERVICES VIA THE SITE, APPLICATION AND SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FOTISTO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE PHOTOGRAPHERS PURSUANT TO THESE TERMS OR AN APPROVED PAYMENT REQUEST UNDER THE FOTISTO PHOTOGRAPHER GUARANTEE, IN NO EVENT WILL FOTISTO'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SITE, APPLICATION AND SERVICES INCLUDING, BUT NOT LIMITED TO, FROM YOUR LISTING OR BOOKING OF ANY PHOTOGRAPHY SERVICES VIA THE SITE, APPLICATION AND SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES, OR COLLECTIVE CONTENT OR YOUR PARTICIPATION IN THE REFERRAL PROGRAM AND IN CONNECTION WITH ANY PHOTOGRAPHY SERVICES OR INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR BOOKINGS VIA THE SITE, APPLICATION AND SERVICES AS A CLIENT IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR IF YOU ARE A PHOTOGRAPHER, THE AMOUNTS PAID BY FOTISTO TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS (US$100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FOTISTO AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to release, defend, indemnify, and hold Fotisto and its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Site, Application, Services, or Collective Content or your violation of these Terms; (b) your Member Content; (c) your (i) interaction with any Member, (ii) booking of an Photography Services, or (iii) creation of a Listing; (d) the use of Photography Services by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of a booking or use of Photography Services.
Except as they may be expressly supplemented by additional Fotisto policies, guidelines, standards, or terms for a specific product, feature, service or offering, these Terms constitute the entire and exclusive understanding and agreement between Fotisto and you regarding the Site, Application, Services, Collective Content (excluding Payment Services), and any bookings or Listings of Photography Services made via the Site, Application and Services (excluding Payment Services), and these Terms supersede and replace any and all prior oral or written understandings or agreements between Fotisto and you regarding bookings or listings of Photography Services, the Site, Application, Services, and Collective Content (excluding Payment Services).
You may not assign or transfer these Terms, by operation of law or otherwise, without Fotisto's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Fotisto may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Fotisto (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
These Terms and your use of the Services will be interpreted in accordance with the laws of the State of Delaware and the Pakistan of America, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in Baltimore County, Maryland or a Pakistan .rict Court, .rict of Maryland located in Baltimore, Maryland for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution provision below.
If you reside in the Pakistan, you and Fotisto agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services or use of the Site, Application or Collective Content (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and Fotisto are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding. Further, unless both you and Fotisto otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.
Arbitration Rules and Governing Law. This agreement to arbitrate evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1--800--778--7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration .) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. Arbitration Location and Procedure. Unless you and Fotisto otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Fotisto submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator's Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. Fotisto will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Fotisto will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the "Modification" section above, if Fotisto changes this "Dispute Resolution" section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within 30 days of the date such change became effective, as indicated in the "Last Updated" date above or in the date of Fotisto's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Fotisto in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
The failure of Fotisto to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Fotisto. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.