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Terms of Service
Last Updated: January 2025
Welcome to Photo Engineers. Photo Engineers provides an content platform for both individuals and businesses (the “Services”). The website www.photoengineers.com (the “Site”), the Photo Engineers mobile applications (collectively, the “Applications”), the various related products (the “Products”) and the various related services, features, functions, software, applications, websites and networks associated with the photo booth platform (together with the Site, the Applications, the Products and the Services, collectively, the “Photo Engineers Services”) are provided and operated, and are being made available to you and the other users of the Services and any of the other Photo Engineers Services, including any event or party organizer, sponsor, administrator, host, guest, visitor, client or customer (collectively, “Users”) by Phototastic, LLC. (“Photo Engineers”). All defined terms used herein shall have the meanings prescribed to these terms in these Terms of Service.
These Terms of Service (“Terms”) govern your use of the Site, the Applications, the Products, the Services and the other Photo Engineers Services. By clicking “I Agree”, downloading, using, configuring or accessing the Site, the Applications, the Products, the Services or any of the other Photo Engineers Services, or otherwise signifying your acceptance of these Terms, you represent and warrant that, if you are using the Services or any other Photo Engineers Services on behalf of an organization (a) you are authorized to enter these Terms of Service for and on behalf of yourself and your organization, and are doing so, (b) you and your organization can legally enter into these Terms and (c) you have read and understand and agree that you, the organization and each user shall be bound by these Terms of Service and Photo Engineers’s Privacy Policy (https://www.photoengineers.com/privacy-policy)(the “Privacy Policy”) and all modifications and additions provided for. If you do not agree to these Terms of Service or the Privacy Policy, please do not use any of the Photo Engineers Services.
1. Eligibility.
To access and use the Site, the Applications, the Products and the other Photo Engineers Services, you must be at least 18 years of age.
By registering for the Site, the Applications, the Services or any of the other Photo Engineers Services, clicking the “I Agree” button or by downloading, installing or otherwise using the Site, the Applications, the Products, the Services or any of the other Photo Engineers Services, you represent that:
- you satisfy the eligibility requirements and have not been previously suspended or removed from the Site, the Applications or any of the other Photo Engineers Services.
- you confirm that you are of legal age to form a binding contract with Photo Engineers you can form a binding contract with Photo Engineers; and you will comply with these Terms and all applicable local, state, national and international laws, rules and regulations.
2. Privacy.
Your privacy is important to Photo Engineers. Our goal is to make the Site, the Applications, the Products, the Services and the other Photo Engineers Services as good, useful and rewarding for you as possible. In order to do that, Photo Engineers may collect and process information from you when you use the Site, the Applications, the Products, the Services and the other Photo Engineers Services. Photo Engineers will collect certain personally identifiable information from you as set forth in more detail in our Privacy Policy. When you use the Site, the Applications, the Products, the Services and the other Photo Engineers Services, Photo Engineers has access to, and in some cases may monitor, your usage of the Site, the Applications, the Products, the Services and the other Photo Engineers Services, including when you send and receive Content (defined below), including photos. By accessing and using the Site, the Applications, Services and the other Photo Engineers Services, you agree that Photo Engineers may collect, use and disclose, as set forth in the Privacy Policy, the information you provide during your access to or use of any of the Photo Engineers Services, and in some cases information that is provided by or through any of the Photo Engineers Services by other parties.
None of the Site, the Applications, the Services or the other Photo Engineers Services are intended for minors under 13 years of age. If you are between the ages of 13 and 18 (or between 13 and the age of legal majority in your country of residence), you may only use the Photo Engineers Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. No one under age 13 may provide any information on or through the Services or any of the other Photo Engineers Services. We do not knowingly collect personal information, including photographs, from children under 13. If you are under 13, do not use or provide any information through the Site, the Applications, the Services or any of the other Photo Engineers Services, use any of the interactive or public comment features of any of the Photo Engineers Services or provide any information about yourself to us, including your name, address, telephone number, e-mail address or any screen name or username you may use. If we learn that we have collected or received personal information from a child under 13 without verification of parental consent, we will delete that information. If you believe that we might have any information from or about a child under 13, please contact us at privacy@photoengineers.com.
3. License Grant; Unauthorized Use.
3.1 License Grant.
Subject to your compliance with all the terms and conditions set out in these Terms, Photo Engineers hereby grants to you a limited, non-exclusive, non-transferable, freely revocable license (a) to install and use the Applications on your mobile and other devices owned by you and (b) to access and use the Site, the Services and the other Photo Engineers Services as contemplated herein.
Updates including important updates, patches, new features, upgrades, bug fixes, and/or other error corrections (collectively, including related documentation, “Updates”) to the Applications and any other software or mobile applications that Photo Engineers may provide to you in connection with the Photo Engineers Services from time to time will generally be available through the App Storeâ and such other app stores from which you can download the Applications or any other software or mobile applications now or in the future. Now or in the future you may also be notified of available updates or the Applications or such other software or mobile applications may automatically download and install upgrades, updates, or other new features. You may be able to adjust these automatic downloads through your device’s settings. You shall promptly download and install all Updates and acknowledge and agree that the Applications or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Applications and be subject to all terms and conditions of these Terms.
3.2 Prevention of Unauthorized Use.
Photo Engineers reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the Site, the Applications or the other Photo Engineers Services, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
4. Services and Photos.
4.1 Consents.
If you are responsible, directly or indirectly, for the operation or management of the Services at any party, event or other occasion or under any other circumstance (an “Event”) (including the taking of pictures of any of the Users)(the “Operator”), you shall obtain all releases, waivers, approvals and other consents necessary (a) for any User to access and use the Services, (b) to upload and publicly display without restriction any and all photos taken through the Services (the “Photos”) onto the Site and (c) for Photo Engineers and other Users to use, develop, host, transfer, display, perform, reproduce, distribute, modify and otherwise commercialize the Photos (and any copyrights, publicity, database and other proprietary rights therein and derivative works thereof), in connection with the Site, the Applications, the Services and the other Photo Engineers Services and Photo Engineers’s (and its successors’ and affiliates’) business, including without limitation, promoting, advertising and redistributing part or all of the Photo Engineers Services (and derivative works thereof), in any media formats.
4.2 Eligibility.
If you are the Operator of the Services at any Event, you shall ensure that any User using the Services is eligible to use the Services and the other Photo Engineers Services in accordance with these Terms and all applicable laws, rules and regulations. If you believe for any reason that any of the Users may not be so eligible to use the Services or any of the other Photo Engineers Services, then you acknowledge and agree, among other things, to use the management tools provided by Photo Engineers (the “Management Tools”) or otherwise restrict access to the Services to ensure compliance with these Terms and all applicable laws, rules and regulations. The Management Tools may include a mechanism that enables only you as Operator to control if and when Photos will be uploaded to the Site.
4.3 User Distribution.
After a Photo is uploaded to the Site, you may receive a link to the Photo on the Site. You may share or post that link including through text, email and any social network subject to compliance with these Terms and all applicable laws, rules and regulations. You shall be solely responsible for compliance with these Terms or any such applicable laws, rules and obligations and Photo Engineers shall have no liability or obligation to you or any other User regarding any such Photos or links.
4.4 Waiver.
YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST PHOTO ENGINEERS WITH RESPECT TO ANY RIGHTS OR ACTIONS THAT ARE CONTEMPLATED UNDER THIS SECTION 4.
5. Fees.
To the extent that you are obligated to pay any licensing, subscription or other fees to receive any of the Photo Engineers Services or participate in activities associated with the Photo Engineers Services (collectively, the “Fees”), you agree to pay, and authorize Photo Engineers to charge for, such Fees in accordance with the applicable terms and conditions. Photo Engineers reserves the right to modify any such Fees at any time in accordance with Section 10.
ALL FEES ARE NON-REFUNDABLE, NON-CANCELLABLE AND NON-CREDITABLE UNLESS SPECIFICALLY PROVIDED OTHERWISE IN THE APPLICABLE TERMS AND CONDITIONS OR PROHIBITED BY LAW.
6. Additional Policies.
When using the Site, the Applications, the Services and the other Photo Engineers Services, you will be subject to any additional posted policies, guidelines or rules applicable to the Site and Applications and features which may be posted from time to time (the “Policies”). All such Policies are hereby incorporated by reference into these Terms.
7. Respecting Other People’s Rights.
Photo Engineers respects the rights of others. You therefore may not post or send Content that:
- violates or infringes someone else’s rights of publicity, privacy, copyright, trademark, or other intellectual property right;
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by Photo Engineers in its sole discretion;
- is false, misleading, untruthful or inaccurate;
- includes anyone's identification documents or sensitive financial information
- impersonates any person or entity, including any of Photo Engineers’s employees or representatives; or
- spams or solicits any Users.
8. In-app purchases.
Photo Engineers offers or may in the future offer various virtual features, functionality, goods and products (“Products”) that you can purchase and use through the Site or Applications. Payments or payment processing for in-app purchases may be handled by Photo Engineers or unaffiliated third parties. You are responsible for all sales taxes. To the extent that any such taxes are payable by Photo Engineers or such unaffiliated third parties, you must pay to Photo Engineers or such unaffiliated third parties the amount of such taxes in addition to any other amounts owing for such in-app purchases.
All in-app sales of Products may be final and non-refundable so please check the applicable terms and conditions carefully. BY ACCEPTING THESE TERMS, YOU AGREE THAT Photo Engineers IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON UNLESS OTHERWISE PROVIDED IN THE APPLICABLE TERMS AND CONDITIONS OR REQUIRED BY LAW.
Photo Engineers may change, modify, or eliminate Products at any time, with or without notice. You agree that Photo Engineers will bear no liability to you or any third party if Photo Engineers does so.
Unless otherwise agreed in writing, Photo Engineers does not transmit any funds and is not a money-services business. To the extent that any such Products are made available on the Site or in the Applications, they may be provided by an unaffiliated third party, and like any other third-party service, subject to that third party’s separate terms and conditions.
9. Account Security.
When you access and use the Site, the Applications, the Services and the other Photo Engineers Services or any applications, products, services, or information from Photo Engineers, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. You agree that the information you provide to Photo Engineers on registration and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times.
You are required to update or change any information that you provide to Photo Engineers in connection with any of the Photo Engineers Services by updating your profile at www.photoengineers.com.
If at any time you have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID, password, or any credit, debit or charge card number, if applicable), then you shall immediately notify Photo Engineers. You also agree to ensure that you exit your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. You may be liable for the losses incurred by Photo Engineers or others due to any unauthorized use of your account.
10. Modification of These Terms and Fees.
Photo Engineers reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms or any Fees at any time by posting the amended Terms or Fees to the Site or otherwise through the Photo Engineers Services. Please check these Terms, including any Policies, periodically for changes. Your continued use of the Site, the Applications, the Services or any of the other Photo Engineers Services after the posting of changes constitutes your binding acceptance of such changes. If the changed Terms materially modify your rights or obligations, Photo Engineers may require you to provide consent by accepting the changed Terms. If Photo Engineers requires your acceptance of the changed Terms, changes are effective only after your acceptance. For all other changes, except as stated elsewhere by Photo Engineers, such amended Terms or Fees will automatically be effective, replacing the previously-effective Terms or Policies immediately when we post them and apply to all access to and se of the Terms or Policies thereafter. However, any changes to the dispute resolution provisions set out in Choice of Law will not apply to any disputes for which the parties have actual notice before the date the change is posted on the Website. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE SITE, THE APPLICATIONS, THE Services AND THE OTHER Photo Engineers SERVICES.
To the extent that any modifications to the Terms or Policies are not allowed under applicable laws, the prior most recent version of the Terms or Policies shall continue to apply.
11. Copyright Policy.
We take claims of copyright infringement seriously. It is Photo Engineers’s policy to respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from this Site, Applications or other Photo Engineers Services infringe your copyright, you may request removal of those materials (or access to them) from the Site, Applications or other Photo Engineers Services by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), the written notice (the "DMCA Notice") must include substantially the following:
Your physical or electronic signature.
Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Website, a representative list of such works.
Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the written notice is accurate.
A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated copyright agent to receive DMCA Notices is:
Josh Shepard
Phototastic, LLC.
8711 Burnet Rd G-83 Austin, TX 78731, US
dmca@photoengineers.com
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on or through the Photo Engineers Services is infringing your copyright, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
11.1 Repeat Infringers.
It is our policy in appropriate circumstances to disable and/or terminate without notice any User’s access to the Applications and the other Photo Engineers Services if that User is determined by Photo Engineers to be a “repeat infringer.” In addition, Photo Engineers accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
12. License Grant for Content; Representations and Warranties.
12.1 Limited License Grant to Photo Engineers.
The Site, the Applications, the Services and the other Photo Engineers Services permit the submission and/or posting or linking of Photos and other pictures, audio and video recordings, text, data, information and other input or any other content linked, posted, and/or submitted by you or other Users, in each case whether or not made available to other Users (“Content”). By uploading, providing, posting, distributing, submitting or disseminating any Content to or through the Site, the Applications, the Services or the other Photo Engineers Services, you hereby grant to Photo Engineers a worldwide, non-exclusive, perpetual, irrevocable, transferable, sublicensable (through multiple tiers), assignable, fully paid-up, royalty-free, license to use, host, transfer, display, perform, reproduce, distribute, modify and otherwise disclose and commercialize your Content (and any copyrights, publicity, database and other proprietary rights therein), in connection with the Site, the Applications, the Services and the other Photo Engineers Services and Photo Engineers’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Applications and the Services (and derivative works thereof), in any media formats and/or through any Social Media.
12.2 Content Use by Other Users.
You hereby consent to the use of your Content by other Users that are authorized to access your Content in the manner contemplated by these Terms and any of the Photo Engineers Services.
12.3 Content Representations and Warranties.
You are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of your Content (including any Photos) and the consequences of posting or publishing any Content. By uploading and publishing your Content, you affirm, represent, and warrant that: (1) you are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize Photo Engineers and the Users to use and distribute your Content as necessary to exercise the licenses granted by you in this Section 12 and in the manner contemplated by Photo Engineers and these Terms; (2) your Content does and will comply with these Terms; (3) your Content and Photo Engineers’s (and its successors’ and affiliates’) use thereof does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) slander, defame, libel, or violate or invade the right of privacy, publicity or other rights of any person or entity; and (4) your Content does not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of any of the Photo Engineers Services. Violators of these third-party rights may be subject to criminal and civil liability. Photo Engineers reserves all rights and remedies against any Users who violate these Terms.
12.4 Content Disclaimer.
We cannot review all material before it is posted on the Site, Applications or other Photo Engineers Services and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any User or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section. You understand that when accessing or using any of the Photo Engineers Services you may be exposed to Content or other materials from a variety of sources, and that Photo Engineers is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such Content and other content. You further understand and acknowledge that you may be exposed to Content (including Photos) and other materials that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Photo Engineers with respect thereto. Photo Engineers does not endorse any Content and other material or any opinion, recommendation or advice expressed therein, and Photo Engineers expressly disclaims any and all liability in connection with Content and other materials. If notified by a User or a content owner of any Content or other content or materials that allegedly do not conform to these Terms, Photo Engineers may investigate the allegation and determine in its sole discretion whether to remove the Content or other content or materials, which it reserves the right to do at any time and without notice. For clarity, Photo Engineers does not permit copyright infringing activities on or through any of the Photo Engineers Services.
13. Prohibited Conduct.
By using any of the Photo Engineers Services you agree not to:
13.1 Decipher, decompile, disassemble, reverse engineer, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architectures, structures or other elements of any of the Photo Engineers Services, in whole or in part (except to the extent that the laws of your jurisdiction make such restrictions unenforceable);
13.2 Prepare any derivative work of any of the Photo Engineers Services, or any other program based upon any of the Photo Engineers Services;
13.3 Reproduce (except as expressly permitted herein), modify, adapt, translate or otherwise make any changes to any of the Photo Engineers Services or any part thereof;
13.4 Copy, disclose, or distribute any data available on or through any of the Photo Engineers Services in any medium, including without limitation, by any automated or non-automated “scraping;”
13.5 Interfere with, circumvent or disable any security or other technological features or measures of the any of the Photo Engineers Services or attempt to gain unauthorized access to any of the Photo Engineers Services or its related systems or networks;
13.6 Make unsolicited offers, advertisements, or proposals, or send junk mail or spam to other Users of any of the Photo Engineers Services (including, but not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures);
13.7 Use bots or other automated methods to: access any of the Photo Engineers Services, download profiles, contacts or any other information, send or redirect messages or perform any other activities through any of the Photo Engineers Services; or
13.8 Use any of the Photo Engineers Services in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries) or for any other unlawful or inappropriate activities, such as gambling, obscenity, pornography, violence, transmission of deceptive messages, or harassment.
14. Third Party Sites.
The Photo Engineers Services may include links or references to other web sites, products, or services (“Third Party Sites”) solely as a convenience to Users. Photo Engineers does not endorse any such Third Party Sites or the information, materials, products, or other Photo Engineers Services contained on or accessible through Third Party Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through any of the Photo Engineers Services are solely between you and such advertiser. Access and use of Third Party Sites, including the information, materials, products, and services on or available through Third Party Sites are solely at your own risk.
15. Mobile and Data Charges.
You may in the future be responsible for any mobile and data charges that you may incur for using any of the Photo Engineers Services, including text-messaging and data charges. If you’re unsure what those charges may be, you should ask your service provider before using any of the Photo Engineers Services.
16. Termination; Terms of Use Violations.
16.1 Photo Engineers.
You agree that Photo Engineers, in its sole discretion, for any or no reason, and without penalty, may terminate your use of the Applications, the Services or any other Photo Engineers Services or any account (or any part thereof) you may have with Photo Engineers and remove and discard all or any part of your account, user profile, and any Content, at any time. Photo Engineers may also in its sole discretion and at any time discontinue providing access to any of the Photo Engineers Services, or any part thereof, with or without notice. You agree that any termination of your access to the any of the Photo Engineers Services or any account you may have or portion thereof may be effected without prior notice, and you agree that Photo Engineers will not be liable to you or any third party for any such termination. Photo Engineers reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Photo Engineers to disclose the identity of anyone posting any e-mail messages, or publishing or otherwise making available any materials that are believed to violate these Terms. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Photo Engineers may have at law or in equity. As discussed herein, Photo Engineers does not permit copyright infringing activities on any of the Photo Engineers Services, and shall be permitted to terminate access to any of the Photo Engineers Services, and remove all Content or other content submitted by any Users who are found to be repeat infringers in accordance with Section 11 of these Terms. BY ACCEPTING THESE TERMS, YOU WAIVE AND SHALL HOLD Photo Engineers HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY Photo Engineers DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER PHOTO ENGINEERS OR LAW ENFORCEMENT AUTHORITIES.
16.2 You.
Except as expressly set forth herein, your only remedy with respect to any dissatisfaction with (i) the Site, the Applications, the Services or any of the other Photo Engineers Services, (ii) any term of these Terms, (iii) any policy or practice of Photo Engineers in any of the Photo Engineers Services, or (iv) any Content or information transmitted through any of the Photo Engineers Services, is to terminate your account and your use of the Photo Engineers Services. You may terminate your use of Photo Engineers Services and your account at any time by initiating the account deletion process from www.photoengineers.com or by contacting privacy@photoengineers.com from the email address on file with your account with your request for termination. After such termination, you must refrain from use of the Photo Engineers Services until authorized by Photo Engineers.
17. Ownership; Proprietary Rights.
The Site, the Applications, the Services and the other Photo Engineers Services are owned and operated by Photo Engineers. The visual interfaces, graphics, design, compilation, information, intellectual property, computer code (including source code or object code), products, software, services, and all other elements of the Site, the Applications the Services and the other Photo Engineers Services provided by Photo Engineers (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any Content that are provided and owned by you or other Users, all Materials contained on the Site and the Applications are the property of Photo Engineers or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, Photo Engineers Service marks, and trade names are proprietary to Photo Engineers or its affiliates and/or third-party licensors (collectively, the “Photo Engineers Trademarks”). Any and all use by you or any other User of the Photo Engineers Trademarks shall be subject to the prior written approval by of Photo Engineers. You and all other Users shall comply with all reasonable requirements for the use of the Photo Engineers Trademarks as disclosed in writing by Photo Engineers. Except as expressly authorized by Photo Engineers, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. Photo Engineers reserves all rights not expressly granted in these Terms.
18. Indemnification.
You agree to indemnify, defend, and hold Photo Engineers, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, judgments, awards, costs, liabilities, including legal fees and expenses, arising out of or relating to your use or misuse of the Site, the Applications, the Services or any the Photo Engineers Services, any of the Content or any Product, any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you herein. Photo Engineers reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Photo Engineers, and you agree to cooperate with Photo Engineers’s defense of these claims. Photo Engineers will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
19. No Warranties; Disclaimers.
19.1 Disclaimer of Warranties.
You understand that we cannot and do not guarantee or warrant that files or information available for downloading from the internet, Site, or Applications will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. You understand and agree that you use, access, download, or otherwise obtain information, materials, assessments, results or data through any of the Photo Engineers Services, Third Party Sites or products made available in conjunction with or through any of the Photo Engineers Services or the products at your own discretion and risk and that you will be solely responsible for any damage to your property (including your computer system) or loss of data that results from the download or use of such material or data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE PHOTO ENGINEERS SERVICES, CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PHOTO ENGINEERS SERVICES IS AT YOUR OWN RISK. THE PHOTO ENGINEERS SERVICES, CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PHOTO ENGINEERS SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER PHOTO ENGINEERS NOR ANY PERSON ASSOCIATED WITH PHOTO ENGINEERS MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE PHOTO ENGINEERS SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER PHOTO ENGINEERS NOR ANYONE ASSOCIATED WITH PHOTO ENGINEERS REPRESENTS OR WARRANTS THAT PHOTO ENGINEERS SERVICES, CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PHOTO ENGINEERS SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR PHOTO ENGINEERS SERVICES OR THE SERVER THAT MAKES THE SITE OR APPLICATIONS AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE PHOTO ENGINEERS SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PHOTO ENGINEERS SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, PHOTO ENGINEERS AND ITS AFFILIATES, CONTRACTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, THIRD-PARTY PARTNERS, LICENSORS AND SUPPLIERS (COLLECTIVELY, THE “PHOTO ENGINEERS PARTIES”) DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED WITH RESPECT TO THE SITE, THE APPLICATIONS, THE Services AND THE OTHER PHOTO ENGINEERS SERVICES AND THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, PHOTO ENGINEERS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE PHOTO ENGINEERS SERVICES WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS.
20. Limitation of Liability and Damages.
20.1 Limitation of Liability.
TO THE FULLEST EXTENT PROVIDED BY LAW, UNDER NO CIRCUMSTANCES WILL THE PHOTO ENGINEERS PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE PHOTO ENGINEERS SERVICES OR THE MATERIALS, ASSESSMENTS, RESULTS OR CONTENT ON ANY OF THE PHOTO ENGINEERS SERVICES OR ANY THIRD PARTY SITES, OR ANY OTHER INTERACTIONS WITH PHOTO ENGINEERS, ANY CLIENTS, CUSTOMERS, GUESTS OR OTHER USERS EVEN IF PHOTO ENGINEERS OR A PHOTO ENGINEERS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
20.2 Limitation of Damages.
IN NO EVENT WILL THE PHOTO ENGINEERS PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR ACCESS OR USE OF ANY OF THE PHOTO ENGINEERS SERVICES, OR ANY PRODUCT OR YOUR INTERACTION WITH OTHER USERS (ANY CLIENTS, CUSTOMERS OR GUESTS) (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU (OR ON YOUR BEHALF), IF ANY, TO PHOTO ENGINEERS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
20.3 Release for Disputes between Users.
If you have a dispute with any other Users (including any clients, customers or guests) or other third parties, you release Photo Engineers and the other Photo Engineers Parties from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor or released party.”
20.4 Third Party Sites.
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR Photo Engineers SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN Photo Engineers AND RECEIVED THROUGH OR ADVERTISED ON OR THROUGH ANY OF THE Photo Engineers SERVICES OR RECEIVED THROUGH ANY THIRD PARTY SITES.
20.5 Basis of the Bargain.
YOU ACKNOWLEDGE AND AGREE THAT Photo Engineers HAS OFFERED THE SITE, APPLICATIONS, THE PHOTO BOOTH SERVICES AND THE OTHER Photo Engineers SERVICES, ITS PRODUCTS, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND Photo Engineers, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND Photo Engineers. Photo Engineers WOULD NOT BE ABLE TO PROVIDE ANY OF THE Photo Engineers SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
20.6 Limitations by Applicable Law.
Certain jurisdictions do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If you reside in such a jurisdiction, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you may have additional rights. The limitations or exclusions of warranties, remedies or liability contained in these terms apply to you to the fullest extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.
21. United States Export Controls.
You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any software, technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government and/or written assurances by you that you will not export such software, technical data or commodities to certain foreign countries without prior approval of such agency. Your rights under these Terms are contingent on your compliance with this provision.
22. Miscellaneous.
22.1 Notice.
Photo Engineers may provide you with notices, including those regarding changes to these Terms, by email, regular mail or postings on or through the Photo Engineers Services. Except as expressly set forth herein, notice will be deemed given twenty-four hours after email is sent, unless Photo Engineers is notified that the email address is invalid. Alternatively, Photo Engineers may give you legal notice by mail to a postal address, if provided by you through the Applications. In such case, notice will be deemed given three days after the date of mailing. Notice posted on or through any of the Photo Engineers Services is deemed given 30 days following the initial posting.
22.2 Waiver.
The failure of Photo Engineers to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Photo Engineers. No waiver by the Photo Engineers of any term or condition set out in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition.
22.3 Dispute Resolution.
You and Photo Engineers agree that any dispute, claim or controversy at law or equity that arises out of these Terms, the Site, the Applications, the Services or any of the other Photo Engineers Services or the Privacy Policy (a “Claim”) will be resolved in accordance with this Section 22.3 or as Photo Engineers and you otherwise agree in writing. Before resorting to these dispute methods, Photo Engineers strongly encourages you to first contact Photo Engineers directly to seek a resolution.
(a) Choice of Law. These Terms shall be governed in all respects by the laws of the State of Texas, without regard to its conflict of law provisions. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY CLAIM OR OTHERWISE IN CONNECTION WITH THESE TERMS, APPLICATIONS OR THE SITE.
(b) Arbitration and Class Action Waiver. At Photo Engineers’s sole discretion, it may require you to submit any disputes arising from these Terms or use of the Photo Engineers Services, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Texas law. Discovery and rights to appeal in arbitration are generally more limited than in a lawsuit, and other rights that you and Photo Engineers would have in court may not be available in arbitration. You may bring claims only on your own behalf.
Neither you nor Photo Engineers will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST Photo Engineers INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if Photo Engineers is a party to the proceeding.
Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.
In the event that the agreement to arbitrate under this Section 22.3(b) is found not to apply to you or your claim or Photo Engineers otherwise elects not to require submission of a dispute via arbitration, you and Photo Engineers agree that any judicial proceeding (other than small claims actions) must be brought solely and exclusively in, and will be subject to the Photo Engineers Service of process and other applicable procedural rules of, the federal or state courts of Travis County, TX. Both you and Photo Engineers irrevocably consent to venue and personal jurisdiction there. Notwithstanding the foregoing, Photo Engineers may bring a claim for equitable relief in any court with proper jurisdiction.
This arbitration agreement will survive the termination of your use of the Site, the Applications, the Products, the Services or any of the other Photo Engineers Services or your relationship with Photo Engineers.
(c) Improperly Filed Claims. All claims you bring against Photo Engineers must be resolved in accordance with this Section 22.3. All claims filed or brought contrary to this Section 22.3 shall be considered improperly filed. Should you file a claim contrary to this Section 22.3, Photo Engineers may recover attorneys’ fees and costs up to $10,000.00, provided that Photo Engineers has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
(d) Prevailing Party. In the event that either party institutes any legal suit, action or proceeding against the other party arising out of or relating to these Terms, the Privacy Policy, the Site, the Applications, the Products, the Services or any of the other Photo Engineers Services, the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys' fees and expenses and court costs.
(e) Limitation on Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS, THE PRIVACY POLICY, THE SITE, THE APPLICATIONS, THE Services OR ANY OF THE OTHER PHOTO ENGINEERS SERVICES, ANY PRODUCT, ANY CONTENT OR YOUR RELATIONSHIP WITH US MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
22.4 Severability.
If any provision of these Terms (including any Policies) is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
22.5 Assignment.
These Terms and related Policies, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Photo Engineers without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
22.6 Survival.
Upon termination of these Terms, your use of any of the Photo Engineers Services or your relationship with Photo Engineers, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 1, 2, and 8 - 22.
22.7 Headings.
The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
22.8 Entire Agreement.
These Terms, including the Privacy Policy and the other Policies incorporated by reference herein, are the entire agreement between you and Photo Engineers relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to these Terms or Policies made by Photo Engineers as set forth in Section 8 above.
22.9 No Agency.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.
22.10 Geographic Restrictions.
Photo Engineers is based in the United States. Photo Engineers makes no claims that any of the Photo Engineers Services or any of its Content is accessible or appropriate outside of the United States. Access to any of the Photo Engineers Services may not be legal by certain persons or in certain countries. If you access any of the Photo Engineers Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Photo Engineers with respect thereto.
22.11 Your Comments and Concerns.
The Site, the Applications, the Services and the other Photo Engineers Services are offered by SMPL Inc. 5473 Blair Rd Ste 100 PMB 78161, Dallas, TX, 75231-4101, US
All notices of copyright infringement claims should be sent to the copyright agent designated in our Copyright Policy in Section 11 of these Terms in the manner and by the means set out therein.
If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.
All other feedback, comments, requests for technical support, and other communications relating to the Photo Engineers Services should be directed to: support@photoengineers.com.