Last Modified on April 25, 2019
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
The Service provides a platform that enables individuals or businesses seeking to obtain on-demand photography services (“Customers”) to connect with individuals seeking to provide those photography services (“Photographers”). A Customer will use the Service in order to select a Photographer to perform these on-demand photography services (a “Session”) and purchase photographs and images taken by such Photographer during the Session. Photographers, Customers and any other users of the Service are collectively referred to herein as “Users”.
Please note that the Service is operated in the United States and is not available to, and should not be accessed and used by, residents of the European Economic Area.
By agreeing to these Terms, including by a click-through or other agreement, or by using any aspect of the Service, you expressly acknowledge that you have read these Terms and agree to all of its terms and conditions. You also represent and warrant that you are 18 years of age or older.
You further agree to receive all communications, agreements and notices that we provide in connection with the Service electronically, including by e-mail, SMS text message, or by posting them on the Site, the App or through the Service. You agree that all communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You must agree to these Terms in order to use the Service, and if you do not accept these Terms then you may not use any aspect of the Service.
These Terms contain important language governing your use of the Service. It addresses, among other things, information about how we provide the Service, how we or you may terminate the Service, the requirements imposed on you when managing your User account (an “Account”) and how we handle disputes (which includes a class action waiver and binding arbitration in most cases).
Upic may update these Terms at any time in its sole discretion, and Upic will post the updated version of these Terms on the Site and/or the App. You understand and agree that you will be deemed to have accepted the updated Terms if you use any aspect of the Service after the updated Terms are posted. If at any point you do not agree to any portion of these Terms, you must immediately stop using the Service. If Upic makes any material change to these Terms, we will notify you of the change, such as by sending an email to the address associated with your Account, through a pop-up window on the App, or other similar mechanism. Disputes arising under these Terms will be resolved in accordance with the version of these Terms in place at the time the dispute arose. We encourage you to review these Terms frequently to stay informed of the latest modifications.
2. Provision of the Service
You are responsible for any Internet connection, data usage and telecommunications fees and charges that you incur when accessing the Service. You acknowledge and agree that Upic may make changes to any aspect of the Service at any time without notifying you in advance.
3. Termination of Service
Upic reserves the right to deny Service to any person or entity at Upic’s sole and absolute discretion. You acknowledge and agree that Upic may stop providing any aspect of the Service or restrict your use of the Service at any time, without notifying you in advance, for any reason or no reason. If Upic disables your access to your Account, you may be prevented from accessing the Service, your Account details or any materials contained in your Account.
4. User Accounts and Security
4.1. User Account. To access certain aspects of the Service, you must have an Account. You can create an Account by completing the registration process on the Site and/or the App. You may be required to provide information about yourself as part of the registration process or your continued use of the Service. You agree that any registration information that you submit to Upic will be correct, accurate and up-to-date. You shall not select or use as a username a name (a) of another person with the intent to impersonate that person; (b) subject to any rights of a person other than you with appropriate authorization; or (c) that is otherwise offensive, vulgar or obscene.
4.2. User Account Security. Maintaining your Account security is very important. You are solely responsible for maintaining the confidentiality of your Account password and for all activities that are conducted via your Account. You agree to notify Upic immediately if you become aware of any unauthorized use of your password or of your Account.
4.3. User Account Sharing or Transfers. Accounts are registered to you personally and may not be transferred at any time under any circumstances. You may not share your Account with, or disclose your password to, anyone else.
4.4. Cancellation by You. You have the right to cancel your Account at any time. You may cancel your Account by contacting us via email at firstname.lastname@example.org. Once you cancel your Account, your personal information will no longer be viewable by other Users. However, content previously shared with other Users may remain viewable by those Users until they delete such content.
4.5. Termination by Upic. Upic may terminate your Account at any time for any reason or no reason, including if: (a) Upic determines that you are (i) in breach of or otherwise acting inconsistently with these Terms or (ii) engaging in fraudulent or illegal activities or other conduct that may result in liability to Upic; (b) Upic determines it is required by law to terminate your Account; or (c) Upic decides to stop providing the Service or critical portions of the Service.
4.6. Effect of User Account Termination or Cancellation. If you voluntarily terminate your Account, you may reactivate that Account at any time by logging in to the Service through the Site or the App. Accounts terminated by Upic for any type of abuse including, without limitation, a violation of these Terms, may not be reactivated for any reason.
5. Pricing and Payments
5.1. Fees and Information. All prices, fees and other amounts for the Service and Purchased Session Content (defined below) are set forth on the Site and the App (the “Fees”). All amounts shall be expressed and paid in United States Dollars. All Fees are subject to change at any time without notice. No Fee is confirmed until the checkout process is complete.
6.1. Equipment; Costs and Expenses. A Photographer will be responsible for providing a camera, all other necessary equipment required to provide, and all costs and expenses incurred in connection with providing, photography services to a Customer through the Service, including, without limitation, transportation and auto insurance. A Photographer shall also be responsible for any Internet connection, data usage and telecommunications fees and charges that such Photographer incurs when providing such services.
6.2. Background Checks. Upic may, but is not required to, conduct background checks on Photographers. In the event that Upic elects to conduct a background check on a Photographer, (a) such background check shall be administered by Upic or a third-party vendor of Upic (which may include Checkr) and (b) each Photographer shall complete and deliver to Upic any consent or authorization necessary for Upic to conduct such background check. If such Photographer fails to provide such consent or authorization, then such Photographer shall be denied access to or use of the Site, App or Service.
6.3. Upic Fee. Upic shall charge each Photographer a fee for such Photographer’s use of the Site, App and/or Service, which fee is calculated as a percentage (the “Upic Fee Percentage”) of each Fee paid by a Customer to such Photographer (the “Upic Fee”). The Upic Fee Percentage then in effect will be displayed in your Account. The Upic Fee Percentage may be adjusted from time to time by Upic in its sole and absolute discretion. The Upic Fee Percentage used to calculate a Upic Fee will be the Upic Fee Percentage in effect at the time the corresponding Fee is paid by a Customer. The Upic Fee will be rounded to the nearest $0.01.
6.4. Photographer Fees. A Photographer will be entitled to receive payment of the total Fees accrued for the photography services provided by such Photographer through the Service, less the applicable Upic Fee (the “Photographer Fees”). Your Photographer Fees will be paid to you as set forth or provided for on the Site and/or the App. You will not be entitled to a Photographer Fee until the corresponding Fee is paid by the Customer. All amounts shall be expressed and paid in United States Dollars. To receive payments of the Photographer Fees from Upic, you must (a) maintain an active Account with the information necessary to process your payment, (b) establish and maintain an active account with any payment processing service designated by Upic from time to time in its sole discretion (like PayPal, Venmo, Stripe, etc.) (each a “Payment Service”), (c) provide Upic with all necessary access and information to allow payment of your Photographer Fees to your Payment Service account and (d) provide any additional information that Upic may reasonably request. You acknowledge and agree that your relationship with, and use of, any Payment Service will be governed by such Payment Service’s terms and conditions and any other applicable rules or policies of such Payment Service. Upic shall have no liability or responsibility to you or any other third party in connection with the accuracy of the Payment Service information provided by you or your use of any Payment Service (including any fees charged by such Payment Service in connection with such use). Upic is not responsible for payments delivered to the wrong Payment Service account through no fault of Upic or for payment errors made by any Payment Service.
6.5. Account Adjustments. In our sole discretion, we may withhold or not pay Photographer Fees or deduct Photograph Fees from your Account in order to make adjustments for errors, refunds and cancellations with respect to services provided. It is your responsibility to check your Account regularly to ensure that Photographer Fees have been properly credited and paid and that your Account balance is accurate. If you believe that a Photographer Fee has not been correctly credited to your Account, you must contact Upic within thirty (30) days after such Photographer Fee is credited to your Account. Should you disagree with any adjustments made to your Account or payments made to you, your sole remedy is to terminate your Account. Upic may set-off or recoup any amount owed by you to Upic under these Terms or otherwise by subtracting such amount from any amount payable by Upic to you in connection with your use of the Service (including, without limitation, any Photographer Fee).
6.6. TAXES. YOU MAY BE TAXED ON YOUR RECEIPT OF A PHOTOGRAPHER FEE. YOU ACKNOWLEDGE AND AGREE THAT UPIC WILL NOT WITHHOLD ANY TAXES OR MAKE ANY TAX PAYMENTS ON YOUR BEHALF WITH RESPECT TO ANY PAYMENTS MADE TO YOU PURSUANT TO THESE TERMS, AND YOU HEREBY ASSUME COMPLETE RESPONSIBILITY FOR THE PAYMENT OF ANY AND ALL SUCH TAXES. YOU ARE STRONGLY URGED TO CONSULT, AND HEREBY REPRESENT AND WARRANT THAT YOU HAVE CONSULTED WITH, YOUR OWN TAX ADVISORS AS TO THE SPECIFIC TAX CONSEQUENCES OF RECEIVING ANY PAYMENTS UNDER THESE TERMS IN LIGHT OF YOUR PARTICULAR CIRCUMSTANCES, INCLUDING THE APPLICABLE FEDERAL, STATE, LOCAL AND FOREIGN INCOME AND OTHER TAX CONSEQUENCES TO THEM.
6.7. Limited Payment Agent. Each Photographer hereby appoints Upic as such Photographer’s limited payment collection agent solely for the purpose of accepting applicable payment from Customers. Each Photographer agrees that payment made by a Customer through Upic shall be considered the same as a payment made directly to such Photographer, and such Photographer will provide its services to such Customer in the agreed-upon manner as if such Photographer has received the payment. Each Photographer understands that Upic accepts payments from Customers as the Photographer’s limited payment collection agent and that Upic’s obligation to pay such Photographer is subject to and conditional upon successful receipt of the associated payments from Customers. Upic does not guarantee payments to Photographers for amounts that have not been successfully received by Upic from Customers. In accepting appointment as the limited payment collection agent of a Photographer, Upic assumes no liability for any acts or omissions of the Customers. Each Customer acknowledges and agrees that Upic reserves the right, in its sole discretion, to charge Customer for and collect Fees from the Customer.
6.8. Independent Contractor. Each Photographer agrees that such Photographer is an independent contractor and is not an employee, agent or partner of Upic. Such Photographer is not eligible to participate in or receive any benefit from any benefit plan or program available to employees of Upic, including, without limitation, health, disability, or life insurance, vacation or holiday pay, sick leave, profit sharing, retirement or pension plans. Such Photographer does not have the authority to act on behalf of Upic or to bind Upic in any respect whatsoever, or to incur any debts or liabilities in the name of or on behalf of Upic. Persons performing photography services on behalf of such Photographer are not agents or employees of Upic and such Photographer has and hereby retains the right to exercise full control of and supervision over the performance of Photographer’s obligations hereunder and full control over the employment, direction, compensation and discharge of all persons assisting such Photographer in the performance of such obligations. Such Photographer will be solely responsible for all matters relating to payment of such persons, including the payment of all salary, wages or other compensation and compliance with workers’ compensation, unemployment, disability insurance, social security withholding, and all other federal, state and local laws, rules and regulations governing such matters. Such Photographer shall be responsible for any and all taxes including, without limitation, income, payroll, sales, use, gross receipts, real estate, personal property or other taxes imposed in connection with such Photographer’s performance of photography services through the Service, and such Photographer will indemnify and hold Upic harmless for any and all liability (including, without limitation, penalties and interest) sustained because of such Photographer’s failure to pay such compensation and taxes. Such Photographer will be responsible for such Photographer’s own acts and omissions and those of its agents, employees and subcontractors during the performance of any photography services through the Service.
7. Ownership of Session Content
7.1. Each Photographer acknowledges and agrees that the photographs, images, digital negatives and other original data files pertaining to the photographs and images produced as a result of such Photographer performing photography services for a Customer during a Session (collectively, “Session Content”) contain content or features that are protected by copyright, trademark, trade secret, moral rights or other intellectual property and proprietary rights therein (“Content Proprietary Rights”).
7.2. Each Photographer hereby assigns to Upic all of such Photographer’s right, title and interest in and to all Session Content and Content Proprietary Rights therein. Photographer shall further assist Upic to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce, and defend any rights specified to be so owned or assigned. A Photographer shall delete all Session Content from such Photographer’s camera and any other device used by such Photographer immediately after uploading such Session Content to the Site and/or the App.
7.3. Upon a Customer’s payment of all applicable Fees for Session Content purchased by such Customer (“Purchased Session Content”), Upic agrees to assign, transfer and convey to such Customer all of Upic’s right, title and interest in and to such Purchased Session Content and all Content Propriety Rights therein. For clarity, Session Content that is not purchased by a Customer remains the property of Upic.
7.4. In exchange for the use of the Service, each Customer grants to Upic a perpetual, irrevocable, non-terminable, transferable, worldwide, royalty-free, sublicensable, fully paid-up, non-exclusive license to use, reproduce, distribute, prepare derivative works of, display, modify, copy and perform the all of such Customer’s Purchased Session Content in connection with the Service and Upic’s (and its successors’ and affiliates’) business, including, without limitation, for promoting, marketing and redistributing part or all of the Service in any and all media formats and through any and all media channels (including, without limitation, on or off the Site and the App and in any Upic social media channels). Upic shall have the power and authority to sublicense to a Photographer, the license set forth in this Section 7.4 solely to allow such Photographer post and display the Purchased Session Content on such Photographer’s Account.
8. No Endorsement
Although Upic (a) displays information about Photographers and Customers, (b) may conduct background checks on Photographers and (c) may collect payments of Fees for Photographers, such actions do not in any way constitute Upic’s sponsorship or approval of any Photographer or Customer. Upic does not endorse or recommend any Photographer or Customer, and you agree that Upic is not responsible for the accuracy or completeness of information displayed through the Service with respect to such Photographers or Customers.
9. Use Requirements
9.1. License Grant. Subject to the terms and conditions of these Terms, Upic hereby grants you a limited, non-exclusive, personal, non-sublicensable, non-transferable license to use the Service and to download, install and use the App solely in connection with your use of the Service on compatible devices owned or controlled by you, all of which may only be used in accordance with these Terms and any other rules, restrictions or documentation set forth by Upic from time to time.
9.2. Installation. In connection with the Service, you may install the App on one or more mobile devices that you own or control and that meet the minimum specifications provided by Upic.
9.3. Updates. Upic may require that you download and install updates to the App from time to time. You acknowledge and agree that Upic may update the Service from time to time with or without notifying you and may add or remove features or functions to the Service at any time in its sole discretion. You acknowledge and agree that Upic has no obligation to make the Service available to you, make any subsequent versions of the App and the Site available to you or to continue to support the Service in any way.
10. Restrictions and Conditions of Use
10.1. Use Restrictions. Upic permits you to view and use the Service solely for your own personal or limited commercial use, as applicable, in either case not inconsistent with the intended purpose of the Service. Furthermore, you agree that you will not:
(a) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Service;
(b) sell, assign, rent, lease, act as a service bureau, or grant rights in the Service, including, without limitation, through sublicense, to any other person or entity without the prior written consent of Upic;
(c) make any false, misleading or deceptive statement or representation regarding Upic or the Service;
(d) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Service (or any servers, systems or networks connected to the Service) or otherwise attempt to obstruct, disrupt or interfere with the operation of the Service or any other person’s or entity’s use of the Service (or any servers, systems or networks connected to the Service);
(e) attempt to gain unauthorized access to the App, the Site, the Service, accounts registered to other Users, or any servers, systems or networks connected to the Service;
(f) use the Service for any commercial purpose unless consistent with these Terms and the intended use of the Service;
(g) use the Service to develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful;
(h) use the Service to upload, post, e-mail or otherwise transmit any material that constitutes unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation or commercial electronic message;
(i) breach any agreements you enter into with any third parties;
(j) use the Service for any unlawful, prohibited, abnormal or unusual activity as determined by Upic in its sole discretion;
(k) use the Service to engage in any activity that (i) constitutes harassment or a violation of privacy or threatens other people or groups of people; (ii) is harmful to children in any manner; (iii) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (iv) violates any applicable law, ordinance, rule, regulation, treaty or self-regulatory guidelines;
(l) improperly obtain or attempt to improperly obtain any information or data from the Service including, without limitation, email addresses or mobile phone numbers of other Users;
(m) intercept, examine or otherwise observe any proprietary communications protocol used by the Service, whether through the use of a network analyzer, packet sniffer or other device; or
(n) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, any aspect of the Service.
10.2. Non-Circumvention. If you are a Photographer or a Customer, you agree not to contact each other for photography services (other than through the Service) to circumvent your relationship with Upic and the Service.
10.3. Prohibited Persons. You hereby represent and warrant that (a) you are not 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
10.4. Violation of these Terms. You may not connect to or use the Service in any way that is not expressly permitted by these Terms. You acknowledge and agree that you are solely responsible, and Upic has no responsibility or liability to you or any other person or entity, for any breach by you of these Terms or for the consequences of any such breach. Upic may immediately terminate its relationship with you or may suspend your Account immediately if it determines you are using the Service contrary to the restrictions found in these Terms.
11.1. Links from the Service. The Service may contain links to websites operated by independent third parties. Upic provides these links to other websites as a convenience and use of these websites is at your own risk. The linked websites are not under the control of Upic and Upic is not responsible for the content available on the other websites or services. Such links do not imply Upic’s endorsement of information or material on any other website and Upic disclaims all liability with regard to your access to and use of such linked websites. You understand and acknowledge that your access and use of linked websites and the services provided through these websites is governed by the terms of service and other agreements posted on such websites.
11.2. Links to the Service. Unless otherwise set forth in a written agreement between you and Upic, you must adhere to Upic’s linking policy as follows: (a) the appearance, position and other aspects of any link to the App or the Site may not be such as to damage or dilute the goodwill associated with Upic’s or its licensors’ names and trademarks; (b) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Upic; and (c) when selected by a User, the link to the App or the Site must display the App or the Site on full-screen and not within a “frame” on the linking website. Upic reserves the right to revoke its consent to the link at any time and in its sole discretion (including any link on any social media networking platform). Furthermore, Upic reserves the right to revoke or modify any link (including any vanity link) to the Site, App or Service or otherwise related to your Account (including any link on any social media networking platform).
12. Upic Intellectual Property
12.1. Trademarks. The Upic name and logo are trademarks and service marks of Upic. Unless permitted in a separate written agreement with Upic, you do not have the right to use any of Upic’s trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.
12.2. Ownership. You acknowledge and agree that Upic, or its licensors, owns all right, title and interest in and to the Service, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Service is protected by United States and international copyright laws. Further, you acknowledge that the Service may contain information that Upic has designated as confidential and you agree not to disclose such information without Upic’s prior written consent.
12.3. Ratings and Feedback. Upic may allow (a) Customers to rate a Photographer and the photography services provided by such Photographer through the Service (a “Photographer Rating”) and (b) Photographers to rate a Customer (a “Customer Rating”), in each case, using the rating system provided on the Site or the App (collectively, a “Rating”). You may only leave a Rating once the Session has concluded. Upic may remove a Rating at any time, in its sole discretion. Users agree to provide a true, fair and accurate Rating. You may choose to, or Upic may invite you to, submit comments, bug reports, Ratings, ideas or other feedback about the App, the Site, the Service or any modifications, features or improvements thereto (“Feedback”). You agree that Upic shall own any and all Feedback and Upic shall have the right to use, in any manner and for any purpose whatsoever, any and all Feedback (including, without limitation, creating an aggregate rating from the Ratings and showing Users such aggregated ratings). You hereby assign to Upic all right, title and interest that you may acquire in and to any Feedback.
12.4. Repeat Infringer Policy; Copyright Complaints. In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of Users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify Upic as follows:
To: Upic Copyright Agent
Address: 11630 Chenault Street, Unit 12
Los Angeles, CA 90049
Telephone Number: (310) 776-5158
E-Mail Address: email@example.com
Such notice must contain the following information:
• your address, telephone number, and email address;
• a description of the copyrighted work that you claim has been infringed;
• a description of where the alleged infringing material is located;
• a statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
• an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
• a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
13. Social Networks
The Service includes features that operate in conjunction with certain third-party social networking platforms such as Facebook, Instagram and Twitter (the “Social Network Features”). While your use of the Social Network Features is governed by these Terms, your access and use of third party social networking platforms and the services provided through such platforms are governed by the terms of service and other agreements posted by such platforms. You understand and acknowledge that the Service is not endorsed or certified by any of the aforementioned social networking platforms.
The Service is operated by Upic in the United States. In order for us to provide our Service, you agree that we may transfer, use and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law. If you choose to access the Service from a location outside of the United States, you do so on your own initiative and you are responsible for compliance with applicable local laws; provided, however, that the Service is not available to, and should not be accessed and used by, residents of the European Economic Area.
16. Submitted Content
16.1. Upic is not the source of, does not verify or endorse and takes no responsibility for the content of communications made using the Service or any materials submitted or made available through the Service via any function which allows a User to post or share content (which shall include, without, limitation, any photograph, image or other visual likeness of you) (“Submitted Content”). By using the Service, you agree that your Submitted Content may be viewable by other Users. Submitted Content is entirely the responsibility of the person from whom such content originated. You therefore may be exposed to content that is offensive, unlawful, harmful to minors, obscene, indecent or otherwise objectionable. Submitted Content may be protected by intellectual property rights owned by third parties. You are responsible for the content you choose to communicate and access using the Service. In particular, you are responsible for ensuring that you do not submit material that (a) is protected by copyright, contains trade secrets or otherwise is subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner; (b) is false or is a misrepresentation; (c) is offensive, unlawful, harmful to minors, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; or (d) impersonates another person. Upic may in its sole discretion block, prevent delivery of or otherwise remove the content of communications as part of its effort to protect the Service or its Users, or otherwise enforce the terms of these Terms. Further, Upic may in its sole discretion remove such content and terminate your Account if you submit any content that is in breach of these Terms. You acknowledge that Upic has the right to pre-screen your Submitted Content but has no obligation to do so. At Upic’s sole discretion, any Submitted Content may be included in the Service in whole or in part in modified form.
16.2. Upic does not claim ownership of any of your Submitted Content. With respect to all of your Submitted Content, you grant Upic a perpetual, irrevocable, non-terminable, worldwide, royalty-free, sublicensable, fully paid-up, non-exclusive and transferable license to use, reproduce, distribute, prepare derivative works of, display, modify, copy and perform the Submitted Content or any part of the Submitted Content in connection with the Service and Upic’s (and its successors’ and affiliates’) business, including, without limitation, for promoting, marketing and redistributing part or all of the Service (and derivative works thereof) in any and all media formats and through any and all media channels (including, without limitation, on or off the Site and the App and in any Upic social media channels). You also hereby grant each User a non-exclusive license to access your Submitted Content through the Service while the Submitted Content is made available through the Service. You may take down any of your Submitted Content at any time; however, you acknowledge and agree, that Upic may still have access to such Submitted Content and that the above license granted by you to Upic will remain in effect despite your removal of the Submitted Content from the Service. You hereby represent, warrant and covenant that any Submitted Content you provide does not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified in this Section.
16.3. You acknowledge that your Submitted Content is your sole responsibility. You agree that, under no circumstances, will Upic be liable in any way for any Submitted Content, including, but not limited to, any errors or omissions in any Submitted Content, or any loss or damage of any kind incurred as a result of the use or distribution of any Submitted Content transmitted or otherwise made available via the Service.
17. Eligibility of Minors
The Service is intended solely for persons who are 18 years of age or older. Any access to or use of the Site, App or Service by anyone under the age of 18 is expressly prohibited.
18. DISCLAIMER OF WARRANTIES
18.1. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UPIC EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. UPIC MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SERVICE. UPIC DOES NOT REPRESENT OR WARRANT THAT (A) YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (B) THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (C) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS; (D) DEFECTS IN THE OPERATION OF THE SERVICE WILL BE CORRECTED; OR (E) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
18.2. PHOTOGRAPHERS ARE INDEPENDENT CONTRACTORS OF CUSTOMERS AND NOT CONTRACTORS, EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, INDEPENDENT CONTRACTORS OR FRANCHISEES OF UPIC. UPIC DOES NOT TAKE PHOTOGRAPHS, AND DOES NOT EMPLOY OR ENGAGE INDIVIDUALS TO TAKE PHOTOGRAPHS. USERS HEREBY ACKNOWLEDGE THAT UPIC DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS OR SUPERVISE, DIRECT, CONTROL OR MONITOR A PHOTOGRAPHER’S WORK AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PERFORMED IN ANY MANNER, INCLUDING, BUT NOT LIMITED TO, A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE.
18.3. EACH PHOTOGRAPHER IS SOLELY RESPONSIBLE FOR OBTAINING ALL PERMITS, LICENSES AND OTHER PERMISSIONS REQUIRED TO OFFER OR PROVIDE ANY PHOTOGRAPHY SERVICES OR OTHER PHOTOGRAPHER-PROVIDED SERVICES AND UPIC ASSUMES NO RESPONSIBILITY FOR A PHOTOGRAPHER’S FAILURE TO OBTAIN SUCH PERMITS, LICENSES OR PERMISSIONS OR OTHERWISE COMPLY WITH ANY APPLICABLE LAWS, RULES OR REGULATIONS.
18.4. NEITHER UPIC NOR ITS PARENTS, AFFILIATES OR LICENSORS, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, STOCKHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS (HEREINAFTER REFERRED TO COLLECTIVELY AS “UPIC PARTIES”) IS RESPONSIBLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICE AND YOU HEREBY RELEASE UPIC PARTIES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH UPIC OR THE SERVICE.
18.5. UPIC ONLY ENABLES CONNECTIONS BETWEEN USERS AND IS NOT RESPONSIBLE FOR THE PERFORMANCE OR COMMUNICATIONS OF USERS, NOR DOES IT HAVE CONTROL OVER THE QUALITY, TIMING, LEGALITY, FAILURE TO PROVIDE, OR ANY OTHER ASPECT WHATSOEVER OF AGREEMENTS BETWEEN USERS, PHOTOGRAPHERS, CUSTOMERS, NOR OF THE INTEGRITY, RESPONSIBILITY, COMPETENCE, QUALIFICATIONS, OR ANY OF THE ACTIONS OR OMISSIONS WHATSOEVER OF ANY USERS, OR OF ANY RATINGS PROVIDED BY USERS WITH RESPECT TO EACH OTHER. UPIC DISCLAIMS ANY AND ALL LIABILITY RELATING TO YOUR INTERACTIONS WITH ANY PHOTOGRAPHER(S), CUSTOMER(S) OR OTHER USER(S). ANY REPRESENTATIONS MADE TO YOU BY ANY PHOTOGRAPHER(S) ARE MADE SOLELY AT THE DISCRETION OF THE PHOTOGRAPHER AND UPIC HAS NO WAY TO MONITOR OR VALIDATE, AND SHALL NOT BE RESPONSIBLE OR LIABLE IN ANY WAY FOR, ANY REPRESENTATIONS OR STATEMENTS MADE TO YOU BY THE PHOTOGRAPHER(S). YOU UNDERSTAND AND ACKNOWLEDGE THAT UPIC SHALL HAVE NO LIABILITY TO YOU FOR ANY STATEMENTS OR REPRESENTATIONS MADE BY THE PHOTOGRAPHER TO YOU AS A RESULT OF YOUR USE OF THE SERVICE(S).
19. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UPIC AND THE OTHER UPIC PARTIES SHALL NOT BE LIABLE TO YOU UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICE, EVEN IF UPIC OR THE OTHER UPIC PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO CASE SHALL THE LIABILITY OF UPIC OR ANY OF THE OTHER UPIC PARTIES EXCEED, IN THE AGGREGATE, FIFTY DOLLARS ($50).
THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF CERTAIN WARRANTIES, CONDITIONS OR REPRESENTATIONS SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES HERETO, THAT THE PARTIES HAVE RELIED UPON SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, AND THAT ABSENT SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS OF THESE TERMS WOULD BE SUBSTANTIALLY DIFFERENT.
You agree to defend, indemnify and hold Upic and the other Upic Parties harmless from and against any and all claims, demands, liabilities damages and losses including, without limitation, reasonable attorneys’ fees, resulting from or arising out of (a) your use of the Service; or (b) your breach of these Terms or any other policies that Upic may issue for the Service from time to time. You further agree to cooperate as required by Upic in the defense of any claim. Upic reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Upic.
21. Governing Law; Jurisdiction
These Terms are governed by California law, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and Upic agree that, except as otherwise provided in Section 22 below, the state and federal courts located in Los Angeles, California will have exclusive jurisdiction of all disputes arising out of or related to these Terms or your use of the Service and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, Upic shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
22. Binding Arbitration
22.1. Arbitration Procedures. You and Upic agree that, except as provided in Section 22.4 below, all disputes, controversies and claims related to these Terms or the Service (each a “Claim”) shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in these Terms. In the event of a conflict between the terms set forth in this Section 22 and the JAMS Rules, the terms in this Section 22 will control and prevail.
Except as otherwise set forth in Section 22.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and Upic will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms, (a) you and Upic may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
22.2. Location. The arbitration will take place in Los Angeles, California, unless the parties agree to video, phone or internet connection appearances.
22.3. LIMITATIONS. YOU AND UPIC AGREE THAT ANY ARBITRATION SHALL BE LIMITED TO THE CLAIM BETWEEN UPIC AND YOU INDIVIDUALLY. YOU AND UPIC AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
22.4. Exceptions to Arbitration. You and Upic agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of Upic’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
22.5. Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
22.6. Severability. You and Upic agree that if any portion of this Section 22 is found illegal or unenforceable (except any portion of Section 22.4), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 22.4 is found to be illegal or unenforceable then neither you nor Upic will elect to arbitrate any Claim falling within that portion of Section 22.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within Los Angeles, California, United States of America, and you and Upic agree to submit to the personal jurisdiction of that court.
23. Notice Regarding App Stores
To the extent that you are using our mobile applications that you downloaded through a third party’s App store, you further acknowledge and agree to the terms of this Section. You acknowledge that these Terms are between you and Upic only, not with the owner or operator of the App store (the “App Store Provider”), and the App Store Provider is not responsible for the App or the Service and the content thereof.
23.1. The App Store Provider has no obligation whatsoever to furnish any maintenance and support services with respect to the App or the Service. In the event of any failure of the App or Service to conform to any applicable warranty, you may notify the App Store Provider and the App Store Provider will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, the App Store Provider will have no other warranty obligation whatsoever with respect to the App or the Service.
23.2. The App Store Provider will not be responsible for addressing any claims by you or any third party relating to the App or the Service or your possession and/or use of the App or the Service, including, but not limited to (a) product liability claims; (b) any claim that the App or the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
23.3. The App Store Provider will not be responsible for the investigation, defense, settlement and discharge of any third-party claim that the App or the Service and/or your possession and use of the mobile application infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the App or the Service. You acknowledge and agree that the App Store Provider and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, the App Store Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.
23.4. You hereby represent and warrant that (a) you are not 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
24.1. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Upic as a result of these Terms or your use of the Service.
24.2. Assignment. Upic may assign its rights under these Terms to any person or entity without your consent. The rights granted to you under these Terms may not be assigned without Upic’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
24.3. Severability. If any part of these Terms is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of these Terms shall be given full force and effect.
24.4. Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with these Terms, except as otherwise provided in Section 22.5, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
24.5. No Waiver. Our failure to enforce any provision of these Terms shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by Upic of any provision, condition or requirement of these Terms shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
24.6. Notices. All notices given by you or required under these Terms shall be in writing and sent to firstname.lastname@example.org.
24.7. Export Administration. You must comply with all export laws and regulations of the United States or any other country (“Export Controls”) and you shall not export, direct or transfer any portion of the Service, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
24.8. Equitable Remedies. You acknowledge and agree that Upic would be irreparably damaged if the terms of these Terms were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of these Terms, in addition to such other remedies as we may otherwise have available to us under applicable laws.
24.9. Entire Agreement. These Terms, including the documents referenced in these Terms, constitute the entire agreement between you and Upic with respect to the Service and supersede any and all prior agreements between you and Upic relating to the Service.