Terms of Service

PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.

IN PARTICULAR, PHOTOGRAPHERS SHOULD UNDERSTAND HOW THE LAWS WORK IN THEIR RESPECTIVE STATES.

Last Updated: 6/30/20

TERMS OF SERVICE

If you are using the Site, Application or Services, you are contracting with PhotoSesh, Inc., with respect to use of the PhotoSesh Site, Application or Services, and with respect to any payments or payouts from or to you conducted through the Site, Application or Services. PhotoSesh is hereinafter referred to as "PhotoSesh", "we", "us", or "our").

PhotoSesh provides an online platform that connects Photographers who desire to sell photography services with Customers who seek to purchase photography services (collectively, the "Services"), which Services are accessible at http://www.PhotoSesh.com and any other websites through which PhotoSesh makes the Services available (collectively, the "Site") and as applications for mobile devices (the "Application"). By using the Site or Application, you agree to comply with and be legally bound by the terms and conditions of these Terms of Service ("Terms"), whether or not you become a registered user of the Services. These Terms govern your access to and use of the Site, Application and Services and all Collective Content (defined below), and your participation in the Referral Program (defined below), and constitute a binding legal agreement between you and PhotoSesh. Please also read carefully our Privacy Policy at http://www.PhotoSesh.com/privacy. 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 OFFERS TO PROVIDE SERVICES AND CUSTOMERS MAY LEARN ABOUT AND BOOK SERVICES DIRECTLY WITH THE PHOTOGRAPHERS. YOU UNDERSTAND AND AGREE THAT PHOTOSESH IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN PHOTOGRAPHERS AND CUSTOMERS, NOR IS PHOTOSESH A PROVIDER OF PHOTOGRAPHY SERVICES, AN AGENT OR INSURER. PHOTOSESH HAS NO CONTROL OVER THE CONDUCT OF PHOTOGRAPHERS, CUSTOMERS OR OTHERS AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW.

Key Terms

"PhotoSesh Content" means all Content that PhotoSesh makes available through the Site, Application, or Services, 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 Customer (as determined by PhotoSesh 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 places.  
"Collective Content" means Member Content and PhotoSesh Content.  
"Content" means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.  
"Customer" means a Member who requests from a Photographer a booking for Services via the Site, Application or Services.   
"Offer to Perform Services" means an offer to perform Services that is posted by a Photographer via the Site, Application, and Services.

Photographer" means a Member who creates an Offer to Perform Services via the Site, Application and Services.  
"Member" means a person who completes PhotoSesh's account registration process, including but not limited to Photographers and Customers, as described under "Account Registration" below.  
"Member Content" means all Content that a Member posts, uploads, publishes, submits, transmits, or includes in their Offer to Provide Services or Member profile to be made available through the Site, Application or Services.  
"Tax" or "Taxes" mean any sales taxes, or other taxes that Photographers 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.

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 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.

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, 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.

Modification

PhotoSesh 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.

Eligibility

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.

How the Site, Application and Services Work

The Site, Application and Services can be used to facilitate the Offer to Provide Services and booking of Services.  To use the Site, Application and Services (including to view Offers to Provide Services, create, book or confirm an Offer to Provide Services) , you must first register to create a PhotoSesh Account (defined below).

As stated above, PhotoSesh makes available an online platform or marketplace with related technology for Customers and Photographers to meet online and arrange for bookings of Services directly with each other. PhotoSesh is not a Photographer, provider ofServices, agent or insurer.  Unless explicitly specified otherwise in the PhotoSesh platform, PhotoSesh's responsibilities are limited to: (i) facilitating the availability of the Site, Application and Services and (ii) serving as the limited payment collection agent of each Photographer for the purpose of accepting payments from Customers on behalf of the Photographer.

PLEASE NOTE THAT, AS STATED ABOVE, THE SITE, APPLICATION AND SERVICES ARE INTENDED TO BE USED TO FACILITATE PHOTOGRAPHERS AND CUSTOMERS CONNECTING AND BOOKING SERVICES DIRECTLY WITH EACH OTHER. PHOTOSESH CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY OFFER TO PROVIDE SERVICES AND THE CONDITION, LEGALITY OR SUITABILITY OF ANY SERVICES. PHOTOSESH IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL OFFER TO PROVIDE SERVICES. ACCORDINGLY, ANY BOOKINGS WILL BE MADE OR ACCEPTED AT THE MEMBER'S OWN RISK.

Account Registration

In order to access certain features of the Site and Application, and to book Services or create a Offer to Provide Services, you must register to create an account ("PhotoSesh 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 PhotoSesh Account with Third-Party Accounts, by either: (i) providing your Third-Party Account login information to PhotoSesh through the Site, Services or Application; or (ii) allowing PhotoSesh 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 PhotoSesh and/or grant PhotoSesh 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 PhotoSesh to pay any fees or making PhotoSesh subject to any usage limitations imposed by such third-party service providers. By granting PhotoSesh access to any Third-Party Accounts, you understand that PhotoSesh 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 PhotoSesh Account and PhotoSesh 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 PhotoSesh Account on the Site, Services and Application. Please note that if a Third-Party Account or associated service becomes unavailable or PhotoSesh'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 PhotoSesh 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. PhotoSesh makes no effort to review any SNS Content for any purpose, including but not limited to for accuracy, legality or non-infringement and PhotoSesh is not responsible for any SNS Content.

Your PhotoSesh Account and your PhotoSesh 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 PhotoSesh 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. PhotoSesh reserves the right to suspend or terminate your PhotoSesh Account and your access to the Site, Application and Services if you create more than one (1) PhotoSesh Account, or if any information provided during the registration process or thereafter proves to be inaccurate, fraudulent, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your PhotoSesh Account, whether or not you have authorized such activities or actions. You will immediately notify PhotoSesh of any unauthorized use of your PhotoSesh Account.

Photographer Application, Photographer Consent to Background Check, Photographer ID

An individual shall not be permitted to access or use the Site, App or Services as a Photographer unless currently authorized by PhotoSesh in its sole discretion.  As part of the application process,  a Photographer must submit a Photographer Application form and Consent to Background Check, in the forms that appear on the PhotoSesh website.  If PhotoSesh approves an individual’s application, PhotoSesh will issue the Photographer a Photographer ID which will enable the Photographer to access and use the Site, App and Services. PhotoSesh reserves the right to deactivate a Photographer ID at is sole discretion.

Offers to Provide Services

As a Photographer with a valid Photographer ID, you may create Offers to Provide Services. To create an Offer to Provide Services, you will be asked a variety of questions about the Services to be offered, including, but not limited to, the hourly rate to be charged by the Photographer, the percentage that this rate represents compared with the Photographer’s standard rate.  You will also be asked to complete a profile, including, but not limited to your name, address, skills and experience. Customers will be able to book your Services via the Site, Application and Services based upon the information provided in your Offer to Provide Services. You understand and agree that once a Customer requests a booking of your Services, you may not request the Customer to pay a higher price than in the booking request.

You acknowledge and agree that you alone are responsible for any and all Offers to Provide Services and Member Content you post. Accordingly, you represent and warrant that any Offer to Provide Services you post and the booking of, an Offer to Provide Services you post (i) will not breach any agreements you have entered into with any third parties, and (ii) will (a) be in compliance with all applicable laws, Tax requirements, and rules and regulations that may apply to any Offer to Provide Services you post (including having all required permits, licenses and registrations), and (b) not conflict with the rights of third parties. Please note that PhotoSesh assumes no responsibility for a Photographer's compliance with any agreements with or duties to third parties, applicable laws, rules and regulations. PhotoSesh reserves the right, at any time and without prior notice, to remove or disable access to any Offer to Provide Services for any reason, including Offers to Provide Services that PhotoSesh, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms http://www.photosesh.com/legal, or otherwise harmful to the Site, Application or Services.

If you are a Photographer, you understand and agree that PhotoSesh does not act as an insurer or as your contracting agent. If a Customer requests a booking of your Services, any agreement you enter into with such Customer is between you and the Customer and PhotoSesh is not a party to it. Notwithstanding the foregoing, PhotoSesh serves as the limited authorized payment collection agent of the Photographer for the purpose of accepting, on behalf of the Photographer, payments from Customers.

If you are a Photographer, acknowledge and agree that you solely have the responsibility of making decisions about which Members you choose to confirm or preapprove for booking for your Services. You acknowledge and agree that, as a Photographer, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who assist or accompany you, or who are associated with you.

PhotoSesh recommends that Photographers obtain appropriate insurance for their Services. Please review any insurance policy that you may have for your Services 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 Customers or individuals on site during the provision of the Services.

PhotoSesh may offer Photographers the option of displaying photographs of themselves and their Services.  A Photographer shall be solely responsible for such display of photography and PhotoSesh shall have no responsibility.  Photographers agree that PhotoSesh may use any such photogaphs displayed for advertising, marketing, commercial and other business purposes in any media or platform, whether in relation to your Offer to Provide Services or otherwise, without further notice or compensation.

No Endorsement

PhotoSesh does not endorse any Member, Photographer or Customer.  Members, Photographers and Customers are required by these Terms to provide accurate information, and although PhotoSesh may undertake additional checks and processes designed to help verify or check the identities or backgrounds of users, we do not make any representations about, confirm, or endorse any Member or the Member's purported identity or background.

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 process, and does not represent anything else. Any such description is not an endorsement, certification or guarantee by PhotoSesh 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 enter into a contract for Services.  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 PhotoSesh 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 Offers to Provide Services made by you. This limitation shall not apply to any claim by a Photographer against PhotoSesh regarding the remittance of payments received from a Customer by PhotoSesh on behalf of a Photographer, which instead shall be subject to the limitations described in the section below entitled "Limitation of Liability".

Bookings and Financial Terms

Key definitions

"Services Fee " means the amounts that are due and payable by a Customer in exchange for the Services.  The Services Fee shall not include any taxes.  It is the obligation of Photographer to determine if any Taxes are due, and if so, to separately collect the Taxes and remit to the Taxing authority.

 "PhotoSesh Commission" means the fee that PhotoSesh charges a Photographer for use of the Site, Application and Services, which is calculated as a percentage of the Services Fee paid by Customer.  For subsequent contracts between a Photographer and Customer initially brought together on the PhotoSesh Site, App or Services, the Photographer need not pay PhotoSesh the PhotoSesh Commission so long as Photographer notifies PhotoSesh of the subsequent contract and charges the Customer his normal rate (as previously disclosed by Photographer to PhotoSesh).

Bookings and Financial Terms for Photographers and Customers

If you are a Photographer and a booking is requested for your 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 may expire or be accepted by another Photographer. When a booking is requested via the Site, Application or Services, we will share with you (i) the first and last name of the Customer who has requested the booking, (ii) a link to the Customer's PhotoSesh Account profile page, (iii) if the Customer and Photographer have both connected their PhotoSesh accounts to SNS, the names of any members of an SNS with whom you are "friends" or associated on the SNS if such individuals are also "friends" or associated with the Customer on such SNS, and (iv) an indication of whether or not the Customer has provided other information to PhotoSesh, such as a verified email address, connection to SNSs, or a government ID. If you are unable to confirm or decide to reject a booking request within the Booking Request Period, any amounts collected by PhotoSesh for the requested booking will be refunded to the applicable Customer's credit card and any pre-authorization of such credit card will be released. When you confirm a booking requested by a Customer, PhotoSesh 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.

PhotoSesh will collect the Services Fees at the time of booking confirmation (i.e. when the Photographer confirms the booking request) and will initiate payment of the Services Fees (less PhotoSesh Commission) to the Photographer upon Photographer’s completion of the Services (except to the extent that a refund is due to the Customer). PhotoSesh may designate a third-party payment processor to handle payments, and the time it takes for the Photographer to receive payouts may depend upon the third-party payment processor.  A third-party payment processor may impose its own additional charges for the use of its services on the Photographer, including by deducting its charges from the payout amount.  PhotoSesh uses Braintree, a division of PayPal, Inc. (Braintree) for payment processing services. By using the Braintree payment processing services you agree to the Braintree Payment Services Agreement available at https://www.braintreepayments.com/legal/gateway-agreement, and the applicable bank agreement available at https://www.braintreepayments.com/legal/cea-wells . PhotoSesh also uses payment processing services for Photographers that are provided by Stripe and are subject to the Stripe Connected Account Agreement (https://stripe.com/connect-account/legal/full), which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement” https://stripe.com/legal). By agreeing to these terms or continuing to operate as a Photographer on the PhotoSesh platform, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of [platform name] enabling payment processing services through Stripe, you agree to provide PhotoSesh accurate and complete information about you and your business, and you authorize PhotoSesh to share it and transaction information related to your use of the payment processing services provided by Stripe.

If you owe or agree to pay any amount via PhotoSesh (whether as a result of your bookings or actions as a Customer or otherwise), then PhotoSesh may (but is not obliged to) withhold the amount owing to PhotoSesh from any payout amounts due to you as a Photographer, and use the withheld amount to setoff the amount owed by you to PhotoSesh. If PhotoSesh does so, then your obligation to pay PhotoSesh will be extinguished to the extent of the amount withheld by PhotoSesh, and PhotoSesh will cease to owe to you any obligations (including, but not limited to, any obligation to pay you) with respect to the amount withheld. In addition to the amount due, if your account is delinquent or you otherwise have chargebacks on your account, you may be charged fees that are incidental to our collection of these delinquent amounts and chargebacks. Such fees or charges may include collection fees, convenience fees, or other third party charges. You hereby explicitly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided to PhotoSesh by you. Such communication may be made by PhotoSesh or by anyone on its behalf, including but not limited to a third party collection agent.

Appointment of PhotoSesh as Limited Payment Collection Agent for Photographer

Each Photographer hereby appoints PhotoSesh as the Photographer's limited payment collection agent solely for the purpose of accepting the Services Fees from Customers.

Each Photographer agrees that payment made by a Customer through PhotoSesh, shall be considered the same as a payment made directly to the Photographer, and the Photographer will make the Services available to the Customer in the agreed-upon manner as if the Photographer has received the Services Fees. Each Photographer agrees that PhotoSesh may, in accordance with the cancellation policy selected by the Photographer and reflected in the relevant Offer to Provide Services, (i) permit the Customer to cancel the booking and (ii) refund (via PhotoSesh) to the Customer that portion of the Services Fees specified in the applicable cancellation policy. Each Photographer understands that as PhotoSesh accepts payments from Customers as the Photographer's limited payment collection agent and that PhotoSesh's obligation to pay the Photographer is subject to and conditional upon successful receipt of the associated payments from Customers. PhotoSesh does not guarantee payments to Photographers for amounts that have not been successfully received by PhotoSesh from Customers. In accepting appointment as the limited authorized agent of the Photographer, PhotoSesh assumes no liability for any acts or omissions of the Photographer.

Please note that PhotoSesh does not currently charge fees for the creation of Offers to Provide Services. However, you as a Photographer acknowledge and agree that PhotoSesh reserves the right, in its sole discretion, to charge you for and collect fees from you for the creation of Offers to Provide Services. Please note that PhotoSesh will provide notice of any Offer to Provide Services fee collection via the Site, Application and Services, prior to implementing such a Offer to Provide Services fee feature.

Bookings and Financial Terms for Customers

Photographers, not PhotoSesh, are solely responsible for honoring any confirmed bookings and making available any Services reserved through the Site, Application and Services. If you, as a Customer, choose to enter into a transaction with a Photographer for the booking of Services, you agree and understand that your booking request once confirmed by Photographer constitutes a binding legal contract.  You acknowledge and agree that you, and not PhotoSesh, will be responsible for performing the obligations of any such agreements, that PhotoSesh is not a party to such agreements, and that, with the exception of its payment obligations hereunder, PhotoSesh disclaims all liability arising from or related to any such agreements. You acknowledge and agree that, notwithstanding the fact that PhotoSesh is not a party to the agreement between you and the Photographer, PhotoSesh acts as the Photographer's payment collection agent for the limited purpose of accepting payments from you on behalf of the Photographer. Upon your payment of the Services Fees to PhotoSesh, your payment obligation to the Photographer for the Services Fees is extinguished, and PhotoSesh is responsible for remitting the Services Fees (less the PhotoSesh Commission), in the manner described in these Terms. In the event that PhotoSesh wrongfully refuses to remit such amounts as described in these Terms, such Photographer will have recourse only against PhotoSesh.

The Services Fees payable will be displayed to a Customer before the Customer 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. If a requested booking is cancelled (i.e. not confirmed by the applicable Photographer), any amounts collected by PhotoSesh will be refunded to such Customer, depending on the selections the Customer makes via the Site and Application, and any pre-authorization of such Customer's credit card will be released, if applicable.

You as a Customer agree to pay PhotoSesh for the Services Fees for any booking requested in connection with your PhotoSesh Account if such requested bookings are confirmed by the applicable Photographer. In order to establish a booking pending the applicable Photographer's confirmation of your requested booking, you understand and agree that PhotoSesh, on behalf of the Photographer, reserve the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card for the Services Fees or (ii) charge your credit card a nominal amount, not to exceed one dollar ($1), or a similar sum in the currency in which you are transacting (e.g. one euro or one British pound), to verify your credit card. As a general rule, PhotoSesh will collect the Services Fees due once PhotoSesh receives confirmation of your booking from the applicable Photographer; if necessary, Services Fees may instead be collected at a later point. Please note that PhotoSesh cannot control any fees that may be charged to a Customer by his or her bank related to PhotoSesh's collection of the Services Fees, and PhotoSesh disclaims all liability in this regard.

In connection with your requested booking, you will be asked to provide customary billing information such as name, billing address and credit card information either to PhotoSesh or its third-party payment processor(s). You agree to pay PhotoSesh for any confirmed bookings made in connection with your PhotoSesh Account in accordance with these Terms by one of the methods described on the Site or Application, e.g. by PayPal or credit card. You hereby authorize the collection of such amounts by charging the credit card provided as part of requesting the booking, either directly by PhotoSesh or indirectly, via a third-party online payment processor or by one of the payment methods described on the Site or Application.  If you are directed to PhotoSesh' third-party payment processor(s), you may be subject to terms and conditions governing use of that third party's service and that third party's personal information collection practices. Please review such terms and conditions and privacy policy before using the services. Once your confirmed booking transaction is complete you will receive a confirmation email summarizing your confirmed booking.

PhotoSesh Commissions

In consideration for the use of the Site, App, and Services, PhotoSesh charges a PhotoSesh Commission to the Photographer. PhotoSesh deducts the PhotoSesh Commission from the Services Fees before remitting the balance to the Photographer as described in these Terms.

Balances will be remitted by PhotoSesh to Photographers via electronic transfer, PayPal, direct deposit or other payment methods, as described on the Site or via the Application. Amounts may be rounded up or down as described the "Rounding Off" section below.

Except as otherwise provided herein, a PhotoSesh Commission is non-refundable.

General Booking and Financial Terms

Cancellations and Refunds

If, as a Customer, you cancel a confirmed PhotoSesh booking within 48 hours of the photography session, you will be charged 50% of the booking fee and PhotoSesh will, within a commercially reasonably time, refund any balance that may have been charged to your credit card in connection with the requested booking.  

If a cancellation is made on the day of the photography session, you may be charged the full amount of the booking fee. The decision to charge the full fee will be at the discretion of PhotoSesh and subject to individual circumstances. In such cases, any potential refund of the booking fee will be managed on a case-by-case basis.

Please note that the aim of this policy is to compensate our photographers for their lost time and opportunity. We recommend that you carefully consider your schedule and availability prior to booking a session.

If a Photographer cancels a confirmed booking made via the Site, Services, and Application, (i) PhotoSesh will refund the Services Fees for such booking to the applicable Customer within a commercially reasonable time of the cancellation and (ii) the Customer will receive an email or other communication from PhotoSesh containing alternative Offers to Provide Services and other related information. If the Customer requests a booking from one of the alternative Offers to Provide Services and the Photographer associated with such alternative Offer to Provide Services confirms the Customer's requested booking, then the Customer agrees to pay PhotoSesh the Services Fees relating to the confirmed booking for the Services in the alternative Offer to Provide Services, in accordance with these Terms. If a Photographer cancelled a confirmed booking and you, as a Customer, have not received an email or other communication from PhotoSesh, please contact us at support@photosesh.com.

If, as a Photographer, you cancel a confirmed booking, you agree that PhotoSesh may apply penalties or consequences to you or your Offer to Provide Services, including (i) publishing an automated review on your Offer to Provide Services indicating that a reservation was cancelled, (ii) keeping the calendar for your Offer to Provide Services unavailable or blocked for the dates of the cancelled booking, or (iii) imposing a cancellation fee (to be withheld from your future payouts or charged to the credit card on file in your PhotoSesh Account). You will be notified of the situations in which a cancellation fee applies before you decide to cancel.

In certain circumstances, PhotoSesh may decide, in its sole discretion, that it is necessary or desirable to cancel a confirmed booking made via the Site, Application and Services. You agree that PhotoSesh and the relevant Customer or Photographer will not have any liability for such cancellations or refunds.

If, as a Photographer, your Customer cancels a confirmed booking or PhotoSesh decides that it is necessary to cancel a confirmed booking, and PhotoSesh issues a refund to the Customer in accordance with the Customer Refund Policy or other applicable cancellation policies, you agree that in the event you have already been paid PhotoSesh shall be entitled to recover the amount of any such Customer refund from you, including by subtracting such refund amount out from any future Services Fees due to you.

Rounding Off

PhotoSesh may, in its sole discretion, round up or round down amounts that are payable from or to Customers 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, PhotoSesh 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, PhotoSesh 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 PhotoSesh 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.

Payment Processing Errors

We will take steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same payment method used for the original payout to or payment by you, so that you end up receiving or paying the correct amount. 

Taxes

You as a Photographer understand and agree that as an independent contractor you are solely responsible for (1) determining your applicable Tax reporting requirements, and (ii) collecting and remitting all applicable Taxes related to your provision of Services. PhotoSesh cannot and does not offer Tax-related advice to any Members.

Photographers may receive 1099s generated by PhotoSesh’s vendor Braintree or Stripe and forwarded to Photographers by PhotoSesh depending on their eligibility based on transaction volume.

In the event that tax regulations or the IRS requires us to collect tax information from our Photographers, or withhold taxes from payouts to Photographers, or take any other action, Photographers shall fully and immediately provide the required information and/or take the required action.  If you as a Photographer fail to comply, we reserve the right to take any and all appropriate action reasonably necessary in PhotoSesh’s sole discretion to meet its obligations, including but not limited to suspending or terminateing a Photographer’s membership, withholding amounts required by law, freezing all payouts to Photographer until resolution, and/or seeking injunctive relief. 

User Conduct

You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Site, Application, Services and Collective Content. In connection with your use of the Site, Application, Services and Collective Content, you may not and you agree that you will not:


 

  • violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, Tax regulations;


 

  • 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;


 

  • access or use our Site, Application, Services or the PhotoSesh API to use, expose, or allow to be used or exposed, any PhotoSesh Content: (i) that is not publicly displayed by PhotoSesh in its search results pages or Offer to Provide Services pages before a booking is confirmed; (ii) in any way that is inconsistent with the PhotoSesh Privacy Policy or Terms of Service; or (iii) in any way that otherwise violates the privacy rights or any other rights of PhotoSesh's users or any other third party;


 

  • use the Site, Application, Services or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms;


 

  • 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 any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;


 

  • 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, distribute, 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 distribution 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 an PhotoSesh Customer or Photographer;


 

 

  • register for more than one PhotoSesh Account or register for an PhotoSesh Account on behalf of an individual other than yourself;


 


 

  • contact a Photographer for any purpose other than asking a question related to a booking, or Offers to Provide Services;


 

  • contact a Customer for any purpose other than asking a question related to a booking or such Customer'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 PhotoSesh, without PhotoSesh's 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 Customer and then complete a booking of Services independent of the Site, Application or Services, in order to circumvent the obligation to pay any Service Fees related to PhotoSesh's provision of the Services or for any other reasons;


 

  • as a Photographer, submit any Offer to Provide Services with false or misleading price information, or submit any Offer to Provide Services with a price that you do not intend to honor;


 

  • 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 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, PhotoSesh's name, any PhotoSesh 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 PhotoSesh's express written consent;


 

  • access, tamper with, or use non-public areas of the Site, Application or Services, PhotoSesh's computer systems, or the technical delivery systems of PhotoSesh's providers;


 

  • attempt to probe, scan, or test the vulnerability of any PhotoSesh system or network or breach any security or authentication measures;


 

  • avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by PhotoSesh or any of PhotoSesh'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; or


 

  • advocate, encourage, or assist any third party in doing any of the foregoing.


 

  • accept or make a payment for Services Fees outside PhotoSesh. 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 PhotoSesh harmless from any liability for such payment.

 

PhotoSesh has the right to investigate and prosecute violations of any of the above to the fullest extent of the law.

PhotoSesh may access, preserve and disclose any of your information if we are required to do so by law, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against PhotoSesh or to comply with legal process (for example, subpoenas or warrants), (ii) enforce or administer our agreements with users, such as these, (iii) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes, or (iv) protect the rights, property or safety of PhotoSesh, its users, or members of the public. You acknowledge that PhotoSesh has no obligation to monitor your access to or use of the Site, Application, Services or Collective Content or to review or edit any Member Content, but has the right to do so for the purpose of operating and improving the Site, Application and Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with these Terms, to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body, to respond to content that it determines is otherwise objectionable or as set forth in these Terms. PhotoSesh reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that PhotoSesh, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Application or Services.

Privacy

You agree that PhotoSesh's Privacy Policy (as may be updated from time to time) governs PhotoSesh's collection and use of your personal information.

Ownership of Site, Application, Services and Collective Content

The Site, Application, Services, and Collective Content are protected by copyright, trademark, and other laws of the United States 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 PhotoSesh. 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.

Application License

Subject to your compliance with these Terms, PhotoSesh 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 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. PhotoSesh reserves all rights in the Application not expressly granted to you by these Terms.

PhotoSesh Content and Member Content License

Subject to your compliance with the terms and conditions of these Terms, PhotoSesh grants you a limited, non-exclusive, non-transferable license, to (i) access and view any PhotoSesh 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, distribute, 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 PhotoSesh or its licensors, except for the licenses and rights expressly granted in these Terms.

Member Content

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 and Services, you hereby grant to PhotoSesh 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, distribute, 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. PhotoSesh 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 and Services. 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 and Services or you have all rights, licenses, consents and releases that are necessary to grant to PhotoSesh 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 PhotoSesh's use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services 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.

Links

The Site, Application and Services may contain links to third-party websites or resources. You acknowledge and agree that PhotoSesh 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 PhotoSesh 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.

Some portions of the PhotoSesh platform implement Google mapping services. Your use of Google mapping services is subject to Google's terms of use.

Proprietary Rights Notices

All trademarks, service marks, logos, trade names and any other proprietary designations of PhotoSesh used herein are trademarks or registered trademarks of PhotoSesh. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.

Feedback

We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, Application and Services ("Feedback"). You may submit Feedback by emailing us, through the http://www.photosesh.com/contact  section of the Site and Application, or by other means of communication. You acknowledge and agree that all Feedback you give us will be the sole and exclusive property of PhotoSesh and you hereby irrevocably assign to PhotoSesh and agree to irrevocably assign to PhotoSesh all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback. At PhotoSesh's request and expense, you will execute documents and take such further acts as PhotoSesh may reasonably request to assist PhotoSesh to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.

Copyright Policy

PhotoSesh respects copyright law and expects its users to do the same. It is PhotoSesh's policy to terminate in appropriate circumstances the PhotoSesh Accounts of Members or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.

Suspension, Termination and PhotoSesh Account Cancellation

We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your PhotoSesh Account. If we exercise our discretion under these Terms to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your PhotoSesh Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Site, Application, Services, your PhotoSesh Account, your Member Content, or receive assistance from PhotoSesh Customer Service, (b) any pending or confirmed future bookings as either Photographer or Customer will be immediately terminated, (c) we may communicate to your Customers or Photographers that a potential, requested or confirmed booking has been cancelled, (d) we may refund your Customers in full for any and all confirmed reservations, irrespective of preexisting cancellation policies, (e) we may contact your Customers to inform them about potential alternate Services with other Photographers that may be available on the Site, Application and Services, and (f) you will not be entitled to any compensation for reservations or bookings (even if confirmed) that were cancelled as a result of a suspension, deactivation or termination of your PhotoSesh Account. You may cancel your PhotoSesh Account at any time by sending us an email. Please note that if your PhotoSesh Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Site, Application and Services, including, but not limited to, any reviews or Feedback.

Ownership and Licensing of Images Taken by Photographers

Photographer shall own the copyright on the digital photographic images (“Images”) and the Photographer shall grant compensating Customer 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, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, reproduce, and distribute the copyrighted Work in any medium for: (1)personal, non-profit uses; (2)commercial uses; and (3)editorial purposes.  When the photographic session has concluded, the Photographer shall electronically deliver digital copies of the Images to compensating Customer.  Upon receipt of the Images, Customer may elect to make reproductions himself/herself, send the images to a third party for reproduction, or purchase reproductions from the Photographer directly.  PhotoSesh shall not compensate or facilitate the compensation to the Photographer for any services requested outside of the PhotoSesh platform. 

All parties including but not limited to the Photographer must obtain a proper legal model release form signed by depicting model, actor, individual, performer, Customer, or owner of the property and facilities within the works if the Photographer intends to use and publish photographs of depicting model, actor, individual, performer, Customer, or Customer’s event, property and facilities for any purpose and in any manner and medium. 

Photographer Ratings

PhotoSesh shall have the authority to offer Customers the opportunity to rate Photographers, in a manner and on such factors as are determined by PhotoSesh in its sole discretion.  For example, the ratings may include but not be limited to such factors as quality of images, competence, timeliness, dress, demeanor, communication, teamwork, safe/pleasant environment, etc.

Safety

Either the Photographer or Customer may terminate and leave the photography session in the event of threatening, hostile or offensive behavior from person(s) at the location, or in the event that the Photographer or Customer’s safety is in question.

Disclaimers

IF YOU CHOOSE TO USE THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT PHOTOSESH DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND OR REGISTERED SEX OFFENDER CHECKS ON ANY MEMBER, INCLUDING, BUT NOT LIMITED TO, CUSTOMERS AND PHOTOGRAPHERS, BUT MAY CONDUCT SUCH BACKGROUND OR REGISTERED SEX OFFENDER CHECKS IN ITS SOLE DISCRETION. THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, PHOTOSESH 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. PHOTOSESH MAKES NO WARRANTY THAT THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT, INCLUDING, BUT NOT LIMITED TO, THE OFFERS TO PROVIDE SERVICES OR ANY SERVICES, WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. PHOTOSESH MAKES NO WARRANTY REGARDING THE QUALITY OF ANY OFFERS TO PROVIDE SERVICES, SERVICES, PHOTOGRAPHERS, CUSTOMERS, OR COLLECTIVE CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE SITE, APPLICATION, OR SERVICES.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PHOTOSESH 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 CUSTOMERS. YOU UNDERSTAND THAT PHOTOSESH DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE, APPLICATION OR SERVICES OR TO REVIEW ANY SERVICES. PHOTOSESH 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, CUSTOMERS AND PHOTOGRAPHERS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON REGARDLESS OF WHETHER SUCH MEETINGS ARE ORGANIZED BY PHOTOSESH. NOTWITHSTANDING PHOTOSESH'S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF THE PHOTOGRAPHERS FOR THE PURPOSE OF ACCEPTING PAYMENTS FROM CUSTOMERS ON BEHALF OF THE PHOTOGRAPHERS, PHOTOSESH EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY CUSTOMER OR OTHER THIRD PARTY.

Limitation of Liability

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 OFFER TO PROVIDE SERVICES OR BOOKING OF ANY SERVICES VIA THE SITE, APPLICATION AND SERVICES, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF PHOTOSESH WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. NEITHER PHOTOSESH 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 DISTRESS 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 OFFER TO PROVIDE SERVICES OR BOOKING OF ANY 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 PHOTOSESH 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, IN NO EVENT WILL PHOTOSESH'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 OFFER TO PROVIDE SERVICES OR BOOKING OF ANY SERVICES VIA THE SITE, APPLICATION AND SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES, OR COLLECTIVE CONTENT AND IN CONNECTION WITH ANY 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 CUSTOMER 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 PHOTOSESH 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 PHOTOSESH 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.

Indemnification

You agree to release, defend, indemnify, and hold PhotoSesh and its affiliates and subsidiaries, and their 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 Services, or (iii) creation of a Offer to Provide Services.

Export Control and Restricted Countries

You may not use, export, re-export, import, or transfer the Application except as authorized by United States law, the laws of the jurisdiction in which you obtained the Application, and any other applicable laws. In particular, but without limitation, the Application may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Persons List or Entity List. By using the Site, Application and Services, you represent and warrant that (i) neither you nor your Services is located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Site, Application and Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons. PhotoSesh does not permit Offers to Provide Services associated with certain countries due to U.S. embargo restrictions.

Accessing and Downloading the Application from iTunes

The following applies to any Application accessed through or downloaded from the Apple App Store ("App Store Sourced Application"):


 

  • You acknowledge and agree that (i) these Terms are concluded between you and PhotoSesh only, and not Apple, and (ii) PhotoSesh, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Services.


 

  • You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.


 

  • In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between PhotoSesh and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of PhotoSesh.


 

  • You and PhotoSesh acknowledge that, as between PhotoSesh and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.


 

  • You and PhotoSesh acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party's intellectual property rights, as between PhotoSesh and Apple, PhotoSesh, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.


 

  • You and PhotoSesh acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.


 

  • Without limiting any other terms of these Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

 

Reporting Misconduct

If you believe a Photographer 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 disturbing conduct, you should immediately report such person to the appropriate authorities and then to PhotoSesh 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.

Entire Agreement

These Terms constitute the entire and exclusive understanding and agreement between PhotoSesh and you regarding the Site, Application, Services, Collective Content, and any bookings or Offers to Provide Services made via the Site, Application and Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between PhotoSesh and you regarding bookings or Offers to Provide Services, the Site, Application, Services, and Collective Content.

Assignment

You may not assign or transfer these Terms, by operation of law or otherwise, without PhotoSesh's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. PhotoSesh 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.

Notices

Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by PhotoSesh (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.

Controlling Law and Jurisdiction

These Terms and your use of the Services will be interpreted in accordance with the laws of the State of New Jersey, without regard to any conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in New Jersey 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.

Dispute Resolution

You and PhotoSesh 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 or Application (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a state court located in New Jersey 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 PhotoSesh are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and PhotoSesh 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. 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 New Jersey 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 PhotoSesh otherwise agree, the arbitration will be conducted in Hudson County New Jersey. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and PhotoSesh 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. PhotoSesh 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.

Changes. Notwithstanding the provisions of the "Modification" section above, if PhotoSesh 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 PhotoSesh'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 PhotoSesh 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).

General

The failure of PhotoSesh 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 PhotoSesh. 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.

Third party beneficiary

These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties. Notwithstanding the foregoing, the parties agree that the payment card networks are third party beneficiaries of these Terms for purposes of enforcing provisions related to payments, but that their consent or agreement is not necessary for any changes or modifications to these Terms.

Contacting PhotoSesh

If you have any questions about these Terms or any App Store Sourced Application, please contact PhotoSesh.

By Mail:

PhotoSesh, Inc

221 River Street, 9th Floor

Hoboken, NJ 07030

 

By Email:

info@photosesh.com

 

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