PhotoRoom Terms and Conditions
Effective date: November 7, 2023
These Terms of Service (these “Terms”) describe your rights and responsibilities when using the mobile and/or web-based software platform, application programming interface and associated software, and other related services (the “Services”) offered by Artizans S.A.S., a subsidiary of PhotoRoom, Inc. (or its successors or assigns) (“we”, “our”, or “us”). If you are a Customer, these Terms govern your access and use of our Services. These Terms (or, if applicable, your written agreement with us) and any Order Form(s) together with all documents referenced herein form the “Agreement” between Customer and us.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AGREEMENT IN SECTION 10.9 AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 10.8 THAT REQUIRE, WITH ONLY SPECIFIED EXCEPTIONS IN SECTIONS 10.9 AND 10.8 OR UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 10.9, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS ONLY TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTIONS OR PROCEEDINGS.
If you subscribe to, or access or use the Services, create an organization, invite users to that organization, or use or allow use of that organization after being notified of a change to these Terms, you acknowledge your understanding of the then-current Agreement and agree to the Agreement on behalf of Customer. Please make sure you have the necessary authority to enter into the Agreement on behalf of Customer before proceeding.
1. General Provisions
1.1. Customers, Authorized Users, and Customer Content
“Customer” or “you” is either you, if you are an individual entering into the Agreement on your own behalf, or the organization that you represent in agreeing to the Agreement. If your organization is being set up by someone who is not formally affiliated with a business entity or other organization, Customer is the individual creating the organization. If you signed up for a subscription plan using your corporate email domain or are otherwise entering into a subscription plan on behalf of a business entity or other organization, the business entity or other organization on whose behalf you signed up is the Customer. By signing up on behalf of your business entity or other organization, you represent and warrant that you have all right, power, and authority to bind such entity or organization to the Agreement.
Individuals authorized by Customer to access the Services (each an “Authorized User”) may submit content or information to the Services, which includes Personal Data and User Content (“Customer Content”), and Customer will have the sole right and responsibility for managing your use of it. Customer will be solely responsible for all of the acts and omissions of its Authorized Users in relation to the Services and the Agreement. The Services are not intended for and should not be used by anyone under the age of 13. Customer must ensure that all Authorized Users are over 13 years old.
Customer will (a) inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Content; and (b) obtain all rights, permissions or consents from Authorized Users and other Customer personnel that are necessary to grant the rights and licenses in the Agreement and for the lawful use and transmission of Customer Content and the operation of the Services.
A subscription allows Customer and its Authorized Users to access the Services. A subscription may be procured through the Services interface, or in some cases, via an order form entered into between Customer and us (an “Order Form”). Subscriptions commence when we make them available to Customer and continue for the term specified in the Services or in the Order Form, as applicable (the “Subscription Period”).
1.3. Beta Products
Occasionally, we look for beta testers to help us test our new features. These features will be identified as “beta” or “pre-release,” or words or phrases with similar meanings (each, a “Beta Product”). Beta Products are made available on an “as is,” and “as available" basis and, to the extent permitted under applicable law, without any warranties or contractual commitments we make for other Services.
Customer and its Authorized Users may choose to, or we may invite them to, submit comments or ideas about the Services, including without limitation about how to improve the Services or our products (“Ideas”). By submitting any Idea, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation, whether to Customer, the Authorized User, or anyone else, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of the submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our personnel, or obtained from sources other than Customer or its Authorized Users.
2. Services Usage and Restrictions
2.1. Our License to Customer
2.1.a. Ownership of the Services, Documentation, and Company Data
We own and will continue to own our Services and Documentation, including all related intellectual property and other proprietary rights related thereto. Further, Customer acknowledges and agrees that we may collect data relating to Customer’s and its Authorized Users’ usage of the Services, including but not limited to your interaction with the Services, your email address, services analytics, and other information as indicated on the “settings” page of your account(“Usage Data”) and collect, analyze, and use data derived from User Content that has been aggregated and/or anonymized such that it does not identify Customer or any identifiable individual person (“Derivative Data” and, collectively with Usage Data, “Company Data”). All Company Data will be owned solely and exclusively by us and, for purposes of clarity, you agree that we may use the Company Data in perpetuity for any purpose permitted by applicable law.
2.1.a. Licenses to the Services and Documentation
During the Subscription Period, we grant the Customer a non-exclusive, non-transferable license to access and use, and to permit Authorized Users to access and use the Services, in accordance with the Agreement, for the Customer's own internal business purposes. If you do not purchase a subscription for the Services, then you will be considered a Free Account. We grant Free Accounts a non-exclusive, non-transferable license to access and use the Services, in accordance with the Agreement, for your own personal, non-commercial purposes.
To the extent that we may make downloadable software components available, via app stores or other channels, as part of the Services, During the Subscription Period, we grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the object code version of these components, but solely as necessary to use the Services. Minor updates, bug fixes, and the like to such downloadable software components will be included under this license for the duration of the subscription.
From time to time we may make available documentation for the Services (the “Documentation”) via a method of our choosing (e.g., via the Services). During the Subscription Period, we grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the Documentation to support Customer’s and its Authorized Users’ use of the Services.
All rights and licenses granted herein are subject to you and your Authorized Users’ full compliance with all of the terms and conditions of the Agreement. All rights in the Services and Documentation not expressly granted herein are expressly reserved by us.
2.2. Customer’s Licenses to Us
2.2.a. Ownership of Customer Content
As between us on the one hand, and Customer and any Authorized Users on the other, Customer will own all Customer Content, including, for purposes of clarity, Personal Data and User Content. PhotoRoom does not claim any ownership rights in Customer Content.
2.2.b. License to Personal Data
Subject to the terms and conditions of the Agreement, Customer (for itself and all of its Authorized Users) grants us a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Personal Data, only as reasonably necessary (a) to provide and maintain the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Personal Data from its Authorized Users or any third parties as may be necessary to grant this license.
Notwithstanding the foregoing, Customer agrees that we may collect, analyze, use and disclose, during or after the Subscription Period or at any time for a Free Account, data derived from Personal Data, which is anonymized and/or aggregated in a manner that makes the identification of Customer or any Authorized User or third party impossible, for any business purpose, including without limitation, to operate, analyze, and improve the Services and other products and services and to share such data with our affiliates and business partners. Customer further agrees that we will have the perpetual right to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of such derived data.
2.2.c. License to User Content
PhotoRoom claims no ownership rights over your User Content. With respect to that portion of Customer Content that consists of videos (including audio tracks imbedded in such video), images, text, and any other content submitted, posted, or otherwise made available by Customer and its Authorized Users through the Services (“User Content”), by submitting, posting, storing, or otherwise making such User Content available through the Services, Customer grants, and represents and warrants that it has all rights necessary to grant (including without limitation any necessary consents and authorizations from individual persons identified in the User Content and licenses from third-parties whose content is included in the User Content), to us a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, host, store, reproduce, modify, publish, list information regarding, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content, and the likeness contained in the User Content, in whole or in part, and in any form, media, or technology, solely for use in connection with our provision of the Services as described in the Agreement and Documentation. By using the Services, you acknowledge and expressly authorize PhotoRoom to use User Content to improve, train and develop PhotoRoom’s products and services. You can opt-out of this at any time by changing the settings on your account, but please note that in some cases this may limit the ability of the Services to better address your specific use case. For clarity, our application programming interface does not store any User Content.
To the extent permitted under applicable law, we take no responsibility and assume no liability for any User Content that Customer or any Authorized User or third-party submits, posts, or otherwise makes available through the Services. As between Customer and us, Customer shall be fully responsible for the User Content and the consequences of submitting, posting, or otherwise making it available via the Services, and Customer acknowledges and agrees that we are acting only as a passive conduit for Customer’s and its Authorized Users’ online distribution of such User Content.
2.3. Responsibilities for Customer Content
We are not responsible for the content of any Customer Content or the way Customer or its Authorized Users choose to use the Services to store or process any Customer Content. Customer represents and agrees that Customer is solely responsible for (i) providing notices and obtaining consents as from its Authorized Users for the collection, use, processing and transfer of Customer Content in connection with the Services; and (ii) ensuring compliance with all laws in all jurisdictions that may apply to Customer Content provided hereunder, including but not limited to all applicable international, federal, state, provincial and local laws, rules, and regulations relating to data privacy and security. Customer may not submit any Customer Content that includes a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, or any other information which may be subject to specific data privacy and security laws including, but not limited to, the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HiTECH), the Family Educational Rights and Privacy Act of 1974 (FERPA), the Children's Online Privacy Protection Act (COPPA),or the GDPR or any other data which is considered to be sensitive or which could give rise to notification obligations under data breach notification laws. We do not make any representations as to the adequacy of the Services to process your Customer Content or to satisfy any legal or compliance requirements which may apply to your Customer Content.
2.4. Use of the Services
Customer must comply with the Agreement and ensure that its Authorized Users comply with the Agreement. We may review conduct for compliance purposes, but we have no obligation to do so. If we believe there is a violation of the Agreement that can be remedied by Customer’s removal of certain Customer Content, we will, in most cases, ask Customer to take direct action rather than intervene. However, we reserve the right to take further appropriate action when we deem it reasonably appropriate.
2.5. User Image Storage and Review
If you purchase a subscription, you may, subject to certain additional limitations, store, retrieve, manage and access certain User Content that you save or upload to the Service. You may not use such services to (i) store, transfer or distribute content of or on behalf of any third parties, (ii) operate your own file storage application or service, or (iii) resell any part of the Service.
Notwithstanding the foregoing, your use of the Service is entirely at your own risk. We do not guarantee the availability or reliability of our Service at any given time. We do not guarantee the integrity of, or the continued availability of, our servers. Whether we make backups, and if so, whether the restoration of those backups will be available to you, is at our discretion. Your sole remedy for the loss of any images or files or other data you may have stored on our Service is to discontinue your use of the Service.
If you experience a bug, error or other issue with the Services, you may opt to report that issue to us through the Services interface or such other procedure that PhotoRoom makes available to you. You will be required to share that affected portion of your User Content with a representative of PhotoRoom. You acknowledge and agree that the PhotoRoom representative may review, decompile or otherwise deconstruct such User Content in order to improve, resolve, or modify the Services and any other PhotoRoom products and services.
2.6. Free Tools and Services
We may, from time to time, offer you access to the Services though a free trial or other type of limited offer for use of all or part of the Services at a reduced cost or at no cost (such access a “Free Account”). If the Free Account has a specific duration, the duration will be specified at sign-up. If you register for a Free Account, or access the Services through a Free Account, you may be presented with additional terms and conditions when registering your account, and any such additional terms and conditions are hereby incorporated into these Terms by reference and are legally binding. The Free Account may not include access to all of the features or functions of the PhotoRoom platform or our Services. Any data that you enter into the Free Account may be permanently lost at the end of the trial period unless you (i) purchase a subscription plan for the Services, or (ii) export such data before the end of the trial period.
At the time you sign up for a Free Account, you must provide a valid Payment Method in order to access the Free Trial. Your payment method will not be charged during the Free Trial. UNLESS YOU CANCEL YOUR FREE ACCOUNT PRIOR TO EXPIRATION, YOUR ACCOUNT WILL AUTOMATICALLY BE SUBSCRIBED FOR PAID SERVICES PURSUANT TO THESE TERMS UPON EXPIRATION OF THE FREE TRIAL, AND A SUBSCRIPTION FEE FOR THE SERVICES WILL BE CHARGED TO YOUR PAYMENT METHOD. FOR MORE INFORMATION ABOUT CANCELLATION AND HOW YOU CAN CANCEL YOUR ACCOUNT, PLEASE REVIEW SECTION 4 OF THESE TERMS.
Notwithstanding any other provision of these Terms, including any service-specific terms and conditions applicable to any portion of the PhotoRoom Platform or the Services, for all Free Accounts, the Services are provided “AS IS” and “as available” without any warranty, and PHOTOROOM DISCLAIMS ANY IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND PHOTOROOM’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO YOUR USE OF THE FREE ACCOUNT IS $100. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY AND FOR THE MINIMUM WARRANTY PERIOD ALLOWED BY THE MANDATORY APPLICABLE LAW.
2.7. Acceptable Use
2.7.a. Technical Restrictions
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the servers hosting the Services than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information, including account names, from the Services; (viii) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (ix) interfering with the proper working of the Services; (x) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; (xi) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein; or (xii) using any content (including any caption information, keywords or other metadata associated with content) for any machine learning and/or artificial intelligence training or development purposes, or for any technologies designed or intended for the identification of natural persons.
Accessing any audiovisual content that may be available on the Services for any purpose or in any manner other than Streaming is expressly prohibited unless explicitly permitted by the functionality of the Services. “Streaming” means a contemporaneous digital transmission of an audiovisual work via the Internet from the Services to an Authorized User’s device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the Authorized User.
2.7.b. Customer Content Restrictions
You are solely responsible for the content of any Customer Content you submit through the Services. You agree not to submit any Customer Content, including but not limited to any User Content, that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (viii) contains any information or content that you know is not correct and current; or (ix) to the extent applicable, violates any school or other applicable policy, including those related to cheating or ethics.
You agree that any Customer Content that you submit does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of privacy, and that you have the power to grant the license granted above. We may, but are not obligated, to reject and/or remove any User Content that we believe, in our sole discretion, violates any of these provisions.
3. Payment Obligations
3.1. Payment Terms
For Customers that purchase a subscription to our Services, fees are specified through the Services interface or in the Order Form(s). Payment obligations are non-cancelable and, except as expressly stated in the Agreement, fees are non-refundable. In the event Customer downgrades any subscriptions from a paid plan to a free plan, Customer will remain responsible for any unpaid fees under the paid plan, and Services under the paid plan will be deemed fully performed and delivered upon expiration of the initial Subscription Period. If we agree to invoice Customer by email, full payment must be received within thirty (30) days from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income.
3.2. Billing Policies
If you elect to purchase a subscription to use our Services, or any other paid aspects of the Services, the Customer agrees to the pricing communicated to you by us. Unless otherwise specified in an Order Form, we may add new services for additional fees and charges, or add or amend fees and charges for existing services, at any time in our sole discretion, by giving to the Customer at least thirty (30) calendar days' written notice, such increase to take effect at the beginning of the next billing cycle. If the Customer is unhappy with the increase, the Customer may give notice to terminate the Agreement, by giving at least twenty-four (24) hours’ written notice to us prior to the next billing date. The fees will not increase during the notice period; otherwise, any change to such pricing shall become effective in the billing cycle following notice of such change as provided under the Agreement.
To use the Services outside of a Free Account, you must provide one or more current, valid accepted -payment card, as may be updated from time to time and which may include payment through your account with a third party (such method, a “Payment Method”). By providing a Payment Method, you agree that we or our Payment Processor are authorized to periodically charge the fees in addition to any applicable taxes and service fees on a recurring basis until you cancel your subscription. The fees for the Services and any other charges you may incur in connection with your use of the Services, such as taxes and possible transaction fees, will be charged to your Payment Method on the specific payment date indicated on your account. The length of your billing cycle will depend on the type of subscription that you choose when you signed up for the Services. Fees are fully earned upon payment. In some cases, your payment date may change, for example, if your Payment Method has not successfully settled, when you change your subscription plan or if your paid subscription began on a date not contained in a given month. We may authorize your Payment Method in anticipation of service-related charges through various methods, including authorizing it prior to the commencement of any Services.
3.3. Payment Information
We use certain third-party payment processors, currently RevenueCat (revenuecat.com/terms/) for our in-app payments and Stripe (https://stripe.com/en-gb-fr/legal/ssa) for other payments (each a “Payment Processor”), to process payments you make in connection with the Services. Please see Payment Processor’s privacy statement available on its website for information on how Payment Processor collects and uses personal information. Payment must be received by Payment Processor and must use one of the payment methods accepted by the Payment Processor. We do not view or store your full credit card or other payment method information. For all payments, Payment Processor will collect your payment method details and charge your chosen payment method. You acknowledge and agree that we are not responsible for any breaches of credit card or other payment method security or privacy.
You represent and warrant that: (i) the account, order, and payment method information you supply to us or Payment Processor, as applicable, is true, correct, and complete; (ii) you are duly authorized to use such payment method; (iii) you will pay any charges that you incur in connection with the Services, including any applicable taxes; (iv) charges incurred by you will be honored by your payment method company; (v) you will pay all charges incurred by you at the posted prices, including all applicable taxes, if any; (vi) you will not allow anyone else to use your subscription; (vii) you will not transfer your subscription or password to anyone else; and (viii) you will report to us any unauthorized or prohibited access or use of your subscription or password.
If any of your account, order, or payment method information changes, you agree to promptly update this information, so that we or Payment Processor may complete your transactions and contact you as needed. We are not liable for any unauthorized use of your credit card, debit card, or other payment method by a third-party in connection with your use of the Services or your subscription.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS, WE DO NOT PROVIDE CREDIT, REFUNDS, OR PRORATED BILLING FOR SUBSCRIPTIONS THAT ARE CANCELED.
4. Term and Termination
4.1. Agreement Term
A free subscription continues until terminated, while a paid subscription has a Subscription Period that may expire or be terminated. The Agreement remains effective until all subscriptions ordered under the Agreement have expired or are terminated or the Agreement itself terminates. Termination of the Agreement will terminate all subscriptions and all Order Forms. Any section of the Agreement that, by its terms or its nature, should survive the termination or expiration of the Agreement shall so survive.
Unless otherwise set forth in an Order Form, (i) all subscriptions automatically renew for additional periods equal to one (1) year or the preceding Subscription Period, whichever is shorter; and (ii) the per-unit pricing during any automatic renewal Subscription Period will be the then-current price communicated to you by us. Either party can give the other notice of non-renewal at least twenty-four (24) hours before the end of a Subscription Period to stop a subscription from automatically renewing.
4.3. Termination for Cause
Unless otherwise set forth in an Order Form, either party may terminate the Agreement on notice to the other party if the other party materially breaches the Agreement and such breach is not cured within twenty-four (24) hours after the non-breaching party provides such notice. Customer is responsible for its Authorized Users, including for any breaches of the Agreement caused by its Authorized Users. We may terminate the Agreement immediately on notice to Customer if we reasonably believe that the Services are being used by Customer or its Authorized Users in violation of applicable law.
4.4. Termination Without Cause
Unless otherwise set forth in an Order Form, Customer may terminate its subscriptions immediately without cause, and we may also terminate the Agreement without cause, but we will provide Customer with twenty-four (24) hours prior notice.
4.5. Effect of Termination
Upon any termination for cause by Customer, we will refund Customer any prepaid fees covering the remainder of the Subscription Period. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the Subscription Period after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
5. Copyright Policy
Since we respect artist and content owner rights, it is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Services, please notify our copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Service;
4. Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and, e-mail address;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: Eliot ANDRES
Artizans of Photo Video Background Editor App S.A.S.
Addr.: 7 Place de l'Hôtel de Ville, 93600 Aulnay-sous-Bois, France
Tel.: (415) 231-0720 (US)
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying us and our affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, Customers and Authorized Users who are deemed to be repeat infringers. We may also at our sole discretion limit access to the Services and/or terminate subscriptions of any Customer or Authorized User who infringes any intellectual property rights of others, whether or not there is any repeat infringement.
6. Representations; Disclaimer of Warranties
Customer represents and warrants that it has validly entered into the Agreement and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with this Agreement. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
7. Limitation of Liability
IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE SIX (6) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT TERMS” SECTION. IN NO EVENT WILL WE HAVE ANY LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorized Users. We will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else, if such information is not kept confidential by Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SUCH AS INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Customer agrees to defend, indemnify and hold harmless us and our affiliates, licensors, and our and their respective employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) Customer’s and any Authorized User’s use of and access to the Services, including any Customer Content or other content transmitted or received by Customer or any Authorized User; (ii) your violation of the Agreement, including without limitation any breach of Customer’s representations and warranties above; (iii) Customer’s or any Authorized User’s violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) Customer’s or any Authorized User’s violation of any applicable law, rule or regulation; (v) Customer Content or any content that is submitted via Customer’s or any Authorized User’s account, including without limitation misleading, false, or inaccurate information; (vi) Customer’s or any Authorized User’s gross negligence, fraud, or willful misconduct; or (vii) any other party’s access and use of the Services with Customer’s or any Authorized User’s credentials or other appropriate security code.
PhotoRoom may disclose “Confidential Information” to you in connection with the Agreement, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all Order Forms, as well as non-public business, product, technology and marketing information. Customer will (i) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Agreement; and (ii) not use or disclose any Confidential Information for any purpose outside the scope of the Agreement.
You consent to PhotoRoom’s use of your company name and logo and general description of your relationship with PhotoRoom in press releases and other marketing materials that we may share from time to time. You further agree to participate, from time to time at PhotoRoom’s sole discretion, in reference phone calls and other marketing initiatives that PhotoRoom may undertake or initiate, including with press, analysts and PhotoRoom’s existing or potential investors or customers.
10.2. Third Party Products, Links, and Information
10.3. Force Majeure
Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
10.4. Relationship of the Parties; No Third Party Beneficiaries
The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Except as set forth herein, there are no third party beneficiaries to the Agreement.
10.5. Email Communications
Except as otherwise set forth herein, all notices under the Agreement will be by email, although we may instead choose to provide notice through the Services. Notices to us must be sent to firstname.lastname@example.org. Notices will be deemed to have been given (i) the business day after it is sent, in the case of notices through email; and (ii) the same day, in the case of notices through the Services.
10.6. Modification; Waiver; Severability
We may change these Terms and the other components of the Agreement (except any Order Forms) in accordance with this Section. If we make a material change to the Agreement, we will provide Customer with reasonable notice prior to the change taking effect. The revised Agreement will become effective on the date set forth in our notice. If Customer (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions. No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. No waiver under the Agreement will be effective unless made in writing and signed by the party being deemed to have granted the waiver. The Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect.
You may not assign or delegate any of your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of PhotoRoom.
10.8. Governing Law
Governing Law; Venue; Waiver of Jury Trial;
The Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of New York, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. Notwithstanding the preceding sentences with respect to the substantive law of the Agreement, any arbitration conducted hereunder shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). You agree that: (i) the Services shall be deemed solely based in New York; and (ii) the website and Services shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than New York. This Agreement shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in New York, New York for any actions for which we 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 our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that New York, New York is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND PHOTOROOM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM PHOTOROOM. For any dispute with PhotoRoom, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that PhotoRoom has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in New York, New York, unless you and Company agree otherwise. If you are using the Services for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing PhotoRoom from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.
10.10. Entire Agreement
The Agreement, including these Terms and all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements or representations concerning its subject matter. The Agreement supersedes the terms of any online agreement electronically accepted by Customer or any Authorized Users. To the extent of any conflict or inconsistency between the provisions in these Terms and any other documents or pages referenced in these Terms, the following order of precedence will apply: (1) the terms of any Order Form, (2) these Terms; and (3) any other documents or pages referenced in these Terms.
10.11. Additional Terms for Mobile Applications
iOS App. The Section applies to any app you acquire from the Apple App Store (such app, “iOS App”). You and PhotoRoom understand and acknowledge that these Terms are solely between you and PhotoRoom, not Apple, Inc. (“Apple”), and that Apple has no responsibility for the iOS App or content thereof. Your access to and use of the iOS App must comply with the usage rules set forth in Apple’s then-current Apple Media Services Terms and Conditions and with the applicable Volume Content Terms. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS App. In the event of any failure of the iOS App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price (if any) for the iOS App to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be governed solely by these Terms and any law applicable to PhotoRoom as provider of the iOS App. You and PhotoRoom acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to: (a) product liability claims; (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. You acknowledge that, in the event of any third-party claim that the iOS App, or your possession and use of that iOS App, infringes that third party’s intellectual property rights, PhotoRoom, 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 PhotoRoom acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms as relates to your license of the iOS App, 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 relates to your license of the iOS App against you as a third-party beneficiary thereof.
Android App. The following applies to any app you acquire from the Google Play Store (such app, “Android App”): (a) you acknowledge that these Terms are between you and PhotoRoom only, and not Google LLC or any affiliate thereof (collectively, “Google”); (b) your access to and use of the Android App must comply with Google’s then-current Google Play Terms of Service; (c) Google is only a provider of the Google Play Store where you obtained the Android App; (d) PhotoRoom, and not Google, is solely responsible for the Android App; (e) Google has no obligation or liability to you with respect to the Android App or these Terms; and (f) you understand and acknowledge that Google is a third-party beneficiary to these Terms as they relate to the Android App.
10.12. Contacting Us
Please also feel free to contact us if you have any questions about the Terms or any other part of the Agreement. You may contact us at firstname.lastname@example.org.