Zenfolio User Agreement 10/20/2020

USER AGREEMENT

This website and related services are provided subject to your agreement with this User Agreement (“Agreement”), which may be modified or supplemented at any time by Zenfolio, Inc. (“Zenfolio,” “we,” “us” or “our”). By using or accessing this website or by placing orders through this website, you agree to be bound by this Agreement as it exists at the time of your use, and that by posting of modifications of this Agreement on this website you have received sufficient notice regarding such modifications. If you do not agree with this Agreement, please promptly exit the website. As used in this Agreement, "you" and "your" will refer to anyone accessing or visiting the website, and "Photographer" refers to the individual or company who has a subscription with Zenfolio to upload and/or sell photographs or related products through this website. In the event of any conflict between this Agreement and any statement, understanding or agreement between you and Photographer, this Agreement controls.

Zenfolio is an online subscription service that provides photographers a hosted platform and related tools for organizing, exhibiting and selling photographs (the “Platform”).  This website is managed by the Photographer who has licensed rights from Zenfolio to operate this website on the Platform. YOU ACKNOWLEDGE AND AGREE THAT THE PHOTOGRAPHER IS SOLELY RESPONSIBLE FOR THE CONTENT MADE AVAILABLE THROUGH THIS WEBSITE AND FOR THE MANAGEMENT OF CONTENT AND INFORMATION ON THIS WEBSITE, AND THAT ZENFOLIO, ITS AFFILIATED COMPANIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, “ZENFOLIO PARTIES”) SHALL NOT HAVE ANY LIABILITY TO YOU FOR ANY CONTENT OR INFORMATION MADE AVAILABLE THROUGH THIS WEBSITE OR ANY ACTION OR FAILURE TO ACT BY A PHOTOGRAPHER..

NOTICE REGARDING TRANSFER OF DATA: ORDER PROCESSING AND FULFILLMENT SERVICES, AND CERTAIN PLATFORM FEATURES UTILIZED BY PHOTOGRAPHERS ON THIS WEBSITE, REQUIRE THAT PERSONAL DATA BE PROCESSED BY ZENFOLIO IN THE UNITED STATES OF AMERICA, WHERE THE NECESSARY COMPUTING SYSTEMS ARE LOCATED.  THOSE SERVICES AND FEATURES WOULD NOT BE AVAILABLE WITHOUT SUCH PROCESSING OF PERSONAL DATA IN THE UNITED STATES OF AMERICA AND YOU HEREBY EXPRESSLY CONSENT TO THE PROCESSING BY, AND TRANSFER OF PERSONAL DATA TO, ZENFOLIO AND THIRD PARTY SERVICE PROVIDERS IN THE UNITED STATES OF AMERICA FOR THOSE PURPOSES.

NOTICE REGARDING ADDITIONAL RIGHTS:   SHOULD YOU DESIRE TO EXERCISE ADDITIONAL RIGHTS AVAILABLE TO YOU UNDER APPLICABLE LAWS, WHICH MAY INCLUDE: (A) RIGHT TO ERASURE OR CORRECTION OF PERSONAL INFORMATION; (B) A RIGHT TO OBJECT TO, OR TO RESTRICT, PROCESSING OF PERSONAL INFORMATION, OR (C) A RIGHT TO PORT PERSONAL INFORMATION, YOU SHOULD FIRST CONTACT THE PHOTOGRAPHER.  THE PHOTOGRAPHER, AS THE MANAGER OF THE WEBSITE, IS THE CONTROLLER FOR ANY PERSONAL INFORMATION PROVIDED BY YOU EXCEPT FOR DIRECT ORDERS (AS DEFINED BELOW).  ZENFOLIO, ACTING AS A PROCESSOR OR SERVICE PROVIDER ON BEHALF OF THE PHOTOGRAPHER, OR AS A CONTROLLER OF DATA FOR DIRECT ORDERS,. CAN BE CONTACTED AT [email protected] WITH YOUR SPECIFIC REQUEST. WE WILL CONSIDER YOUR REQUEST IN ACCORDANCE WITH APPLICABLE LAWS AND WILL FORWARD IT TO THE APPLICABLE PHOTOGRAPHER, OR, WHERE REQUIRED TO ADHERE TO YOUR REQUEST, WE WILL DO SO WITHIN THE TIME PERIODS REQUIRED BY APPLICABLE LAW . TO PROTECT YOUR PRIVACY AND SECURITY, WE MAY TAKE STEPS TO VERIFY YOUR IDENTITY BEFORE COMPLYING WITH THE REQUEST AND MAY CHARGE A FEE TO PROCESS YOUR REQUEST AS ALLOWED BY APPLICABLE LAW. 

Orders

Depending on preferences made available by the Photographer, you may have the option of placing orders to be fulfilled by the Photographer (“Photographer Orders”) or by Zenfolio and its affiliates and suppliers (“Direct Orders”).  You agree that the Photographer shall be solely responsible for all aspects of Photographer Orders, including but not limited to processing and fulfillment, and that Zenfolio shall not have any liability to you for the same.  You agree that you shall be responsible for reviewing, approving, and taking all other necessary steps to place Photographer Orders and Direct Orders, and that neither Photographers nor Zenfolio will have any liability to you for errors you make when placing orders.  You are responsible for paying the Photographer for any Photographer Orders and for any applicable taxes.  For Direct Orders, payments are processed by Zenfolio on behalf of the Photographer. By placing an order you authorize Zenfolio and/or its payment processors to charge your credit card the purchase price for the order, plus applicable taxes. To the extent permissible by law, risk of loss for all items purchased by you through the website passes to you upon Zenfolio's or the Photographer's delivery to a shipping carrier.

As a purchaser of products through this website, you acknowledge that such products are purchased for personal use only and are custom made to your order and have no market beyond your purchase thereof.  Except as provided in the applicable End User License with the Photographer, or for any Stock Images licensed under the Stock Image License at the end of this Agreement (the “Stock Image License”), you may not reproduce, scan, display, transmit, distribute, modify, alter or otherwise exploit those physical products, or any portion thereof, for commercial use, in any manner, without the prior written consent of the Photographer. You acknowledge that products (including digital products) purchased through the website are purchased subject to the terms set forth by the Photographer in a separate End User License as described below or, for Stock Images, as provided in the Stock Image License.

Privacy Policy

Information you provide directly to Zenfolio, including information provided for Direct Orders, is protected by our Privacy Policy 

Opting Out of Certain Communications

Zenfolio may notify you of the receipt and/or status of orders and send you other transaction-related correspondence, and you will not be able to opt out of receiving those communications.  For other communications, if you are no longer interested in receiving them, please e-mail your request to [email protected] or utilize the unsubscribe features within those emails. If you contact us via email, please include your complete name, e-mail address and mailing address. Note that you may still receive transaction-related communications from Zenfolio.

Intellectual Property Rights in Purchased Products

Products purchased through this website are purchased subject to the terms set forth by Photographer in a separate license agreement (each an “End User License”) or under the Stock Image License for Stock Images, and the acquisition of a copy of a product does not itself convey any rights under copyright or other laws to exploit the work. Products purchased by you through this website may not be reproduced, scanned, displayed, transmitted, distributed, modified, altered or otherwise exploited in any manner without the prior written consent of Photographer or as otherwise provided in an End User License or the Stock Image License. Any End User License, Stock Image License or agreement between you and a Photographer is the sole responsibility of those parties.  IT IS YOUR SOLE RESPONSIBILITY TO REVIEW AND UNDERSTAND THE TERMS OF ANY SUCH LICENSES AND AGREEMENTS.  YOU ACKNOWLEDGE AND AGREE THAT ZENFOLIO PARTIES SHALL NOT HAVE ANY LIABILITY TO YOU ARISING OUT OF OR RELATED TO ANY SUCH END USER LICENSES. YOU ACKNOWLEDGE AND AGREE THAT ALL END USER LICENSES FOR DIGITAL PRODUCTS BETWEEN YOU AND A PHOTOGRAPHER ARE ENTERED INTO AT YOUR OWN RISK.  Zenfolio reserves the right, but has no obligation, to become involved in any way with disputes between you and a Photographer.

Copyrighted Materials

Photographers and/or their clients retain their full rights to any content they upload to this website, including, but not limited to, images, videos, biographies and business information. All other content on this website, including but not limited to text, graphics, logos, icons, images, audio clips, video clips, digital downloads, data compilations, and software, as well as any compilation consisting of the selection, organization, or arrangement of content on this website, is the property of Zenfolio or its licensors or suppliers, and no portion of such other content may be reprinted, republished, modified, or distributed in any form without the express written permission of Zenfolio.

Zenfolio respects the intellectual property of others, and we ask that you and Photographers to do the same.  However, Zenfolio is not in a position to determine copyright status of any content uploaded to the website, which may depend upon many facts that are unknown to Zenfolio. Zenfolio makes no representations or warranties as to the accuracy, correctness or reliability of the content posted on the website or sold by Photographer. Zenfolio cannot and does not ensure that all persons depicted in the photographs and trademark owners have consented to the display of their image or trademark therein or on the Site.  If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property or privacy rights have been otherwise violated, you should notify Zenfolio of your claim in accordance with Zenfolio’s Copyright Policy .

Participant Conduct

You are solely responsible for all content and materials that you upload, post, publish or display or otherwise use or make available (hereinafter, “upload”) via or in connection with this website.  Zenfolio reserves the right to investigate and take appropriate legal action against anyone who, in Zenfolio’s sole discretion, violates this provision, including without limitation, removing the offending content, suspending or terminating the account of such violators and reporting you to the law enforcement authorities.  You agree to not:

  1. a) upload or store any content that: (i) infringes or misappropriates any intellectual property rights, or violates any other rights, of any other party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially or ethnically, or otherwise objectionable as determined by Zenfolio in its sole discretion; (vi) constitutes or contains any inaccurate information or data; or (vii) in the sole judgment of Zenfolio, is objectionable or which restricts or inhibits any website visitors, or other person from using or enjoying the website, or which may expose Zenfolio or others to any harm or liability of any type;
  2. b) interfere with or disrupt the Platform or servers or networks connected to the Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the Platform; or
  3. c) violate any applicable local, state, national or international law, or any regulations having the force of law;
  4. d) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
  5. e) solicit personal information from anyone under the age of 18;
  6. f) harvest or collect email addresses or other contact information of other participants from the Services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
  7. g) advertise or offer to sell or buy any goods or services for any purpose that is not specifically authorized or for which you don’t have any necessary rights;
  8. h) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
  9. i) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Services.

Disclaimer of Warranties

THIS WEBSITE, THE PLATFORM AND ANY RELATED SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ZENFOLIO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT ZENFOLIO WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ZENFOLIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT. IN NO EVENT WILL ZENFOLIO’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED ONE HUNDRED DOLLARS ($100).

General

For purposes of any action or claim against Zenfolio, this Agreement shall be governed by and construed in accordance with the laws of the State of California, exclusive of its choice of law rules, and you agree to submit to the exclusive jurisdiction of the state and federal courts in and for the County of San Mateo in the State of California, USA, and waive any jurisdictional, venue, or inconvenient forum objections to such courts, except as otherwise provided in the Privacy Policy. The failure of Zenfolio to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Agreement without the prior written consent of Zenfolio, but Zenfolio may assign or transfer this Agreement in whole or in part, without restriction. Zenfolio Parties shall not have any liability to you for any or be deemed to be in default, for any delay or failure to perform any act under this Agreement resulting, directly or indirectly, from acts of God, civil or military authority, acts of public enemy, terrorism, war, accidents, fires, explosions, earthquake, flood, failure of transportation, strikes or other work stoppages, or any other cause beyond its reasonable control.  The section titles in these Agreement are for convenience only and have no legal or contractual effect.

If your order includes stock images, then the terms of the following Stock Image License apply.

Stock Image License Agreement

THIS AGREEMENT (“STOCK IMAGE LICENSE”) IS BETWEEN YOU (“YOU,” “YOUR,” OR “LICENSEE”) AND THE PHOTOGRAPHER (“PHOTOGRAPHER”) FROM WHOM YOU OBTAINED IMAGES IDENTIFIED AS STOCK IMAGES (“STOCK IMAGES”) AND GOVERNS YOUR USE OF THOSE STOCK IMAGES AS MADE AVAILABLE BY THE PHOTOGRAPHER THROUGH ZENFOLIO.COM, WHICH IS OPERATED BY ZENFOLIO, INC.  (“ZENFOLIO”).  THIS STOCK IMAGE LICENSE IS BETWEEN YOU AND THE PHOTOGRAPHER, AND ZENFOLIO IS NOT A PARTY TO THIS AGREEMENT.

  1. License. Subject to the terms of this Stock Image License, Photographer hereby grants to Licensee a non-exclusive, non-transferable, non-assignable, non-sublicensable right to copy, reproduce, store, cache, publish, modify and make derivative works of the Stock Images, in each case solely for the benefit of Licensee and for the purposes of marketing and promotion of Licensee’s business, products and services and not for the benefit of, or for the business, products or services of, any third party.   If any Stock Images are utilized in an editorial manner, you must provide appropriate attribution to the Photographer, including mention of the Photographer’s name or, such other credit information, if any, as required by the Photographer.
  2. Restrictions.  You may not: (i) allow the use of Stock Images, whether in their original format or modify after initial license, to be used by any third party; (ii) resell, sublicense, sell, assign, convey or otherwise transfer this Stock Image License or any of your rights under this Stock Image License or any rights in Stock Images, including allowing the use of Stock Images by third parties; (iii) use the Stock Images or any derivatives thereof as part of a trademark, service mark, logo or other business or corporate identification mark or symbol; (iv) make the Stock Images available for download or reproduction, or sell, license or distribute any derivative work containing the Stock Images, in each case a way that would allow the extraction or download of the Stock Images; (v) use or allow the use of Stock Images on any made-to-order products, such as mugs, calendars, posters, t-shirts or similar products; (vi) represent that you are the copyright holder of Stock Images; (vii) use Stock Images in conjunction with any pornographic, defamatory, offensive, illegal or harmful material; or (vii) use Stock Images in a manner that reflects negatively on Photographer, as determined by Photographer in the Photographer’s sole discretion.
  3. Ownership.  Subject to the requirements of this Stock Image License, Photographer retains all rights in and to the Stock Images, and except as expressly stated in this Stock Image License, you obtain no other rights in Stock Images, whether express or implied.
  4. Warranty, Disclaimer & Limitation of Liability.  Photographer warrants that it has the necessary rights to grant the rights in the Stock Images as set forth herein.  EXCEPT FOR THE FOREGOING WARRANTY, STOCK IMAGES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND PHOTOGRAPHER DISCLAIMS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.  TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, PHOTOGRAPHER SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF YOUR USE OF THE STOCK IMAGES OR OTHERWISE, EVEN IF PHOTOGRAPHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  PHOTOGRAPHER’S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE STOCK IMAGES (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL, TO THE EXTENT PERMITTED BY LAW, BE LIMITED TO THE AMOUNT YOU PAID TO LICENSE THE STOCK IMAGES IN THE ONE YEAR PERIOD PRIOR TO THE CLAIM.
  5. Termination. Upon your violation of any of the terms of this Stock Image License, your license rights to Stock Images is immediately terminated for your breach.  Further, Photographer may terminate this Stock Image License in Photographer’s reasonable discretion if your use of Stock Images is detrimental to the interests of Photographer, as determined in the Photographer’s sole discretion.  Upon termination, you must immediately (i) stop using the Stock Images; and (ii) delete and remove all Stock Images and any derivatives thereof in your possession or control.
  6. Indemnity and Release. YOU AND PHOTOGRAPHER AGREE THAT ZENFOLIO SHALL NOT HAVE ANY LIABILITY TO YOU OR PHOTOGRAPHER ARISING OUT OF OR RELATED TO THIS STOCK IMAGE LICENSE.  ACCORDINGLY, YOU AND PHOTOGRAPHER HEREBY RELEASE ZENFOLIO, INC. AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, “ZENFOLIO PARTIES”) FROM ANY AND ALL CLAIMS, SUITS, DEMANDS, ACTIONS, LOSSES, LIABILITIES, DAMAGES, FINES, PENALTIES, EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS, RIGHTS, CLAIMS, ACTIONS OF ANY KIND AND INJURY (INCLUDING DEATH) ARISING OUT OF OR RELATING TO STOCK IMAGES.  YOU AND PHOTOGRAPHER, IF A CALIFORNIA RESIDENT, WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” IF A RESIDENT OF ANOTHER JURISDICTION, YOU AND PHOTOGRAPHER WAIVE ANY COMPARABLE STATUTE OR DOCTRINE.
  7. General. This Stock Image License will be governed by the laws of the State of California without regard to its conflict of law provisions. The failure of either party to exercise or enforce any right or provision of this Stock Image License will not constitute a waiver of such right or provision. If any provision of this Stock Image License is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Stock Image License remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Stock Image License must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign or transfer this Stock Image License without the prior written consent of Photographer. Photographer shall not have any liability to you for any or be deemed to be in default, for any delay or failure to perform any act under this Stock Image License resulting, directly or indirectly, from acts of God, civil or military authority, acts of public enemy, terrorism, war, pandemic, accidents, fires, explosions, earthquake, flood, failure of transportation, strikes or other work stoppages, or any other cause beyond its reasonable control.