PLEASE READ THESE TERMS AND CONDITIONS OF USE ("TERMS OF USE") CAREFULLY. BY DOWNLOADING, ACCESSING OR USING THIS MOBILE APPLICATION, WEB SITE, PURCHASING PRODUCTS OR THE SUBSCRIPTION SERVICES, OR CLICKING THAT YOU AGREE WHEN PROMPTED BY UBERGRAM, LLC, YOU AGREE TO BE BOUND BY THESE TERMS OF USE.
 
Welcome to the Ubergram, LLC FotoGenie™ website and mobile application, FotoGenieApp, offering premium, on-demand photography services with a proprietary UGC marketing and analytics platform that creates and monetizes branded visual assets for ecommerce retailers and social media influencers. 
 
Ubergram, LLC, its website service, FotoGenie™ and its on-demand photography mobile application, FotoGenieApp, (collectively as the "FotoGenie,” “FotoGenieApp,” Site", “We”, “Us”, “Our” "Content Provider" etc.) provides our users with online and mobile tools designed to facilitate the creation and analysis of professional photography, commercial marketing products and to provide brand engagement analytics for FotoGenie Smart Photos™. These Terms of Use protect the legal interests of Ubergram, LLC, our users and our third party vendors (collectively as “Third Party Company, Companies, or Analytics Services).
 
This Site, www.fotogenieapp.com is registered to, owned and operated by Ubergram, LLC, its respective officers, managers, employees, agents, affiliates and contractors (collectively, "Ubergram, LLC"). The ecommerce Site is hosted by Shopify, Inc., however Ubergram, LLC is in no way affiliated with or a business partner of Shopify, Inc. These Terms of Use apply to your access to and use of the Ubergram, LLC Site, the Subscription Services (as defined below) and any other online services provided by Ubergram, LLC (the "Services"). These Terms of Use also apply to your use of the Services to purchase photographic prints, photo packages, analytics packages, custom quotes, verbal, written and non-verbal advice or information gathered or implied by the website, it’s affiliates or subcontractors; other related merchandise and products ("Products") through Ubergram, LLC's approved third party vendors and retailers ("Ubergram, LLC Vendors") etc.
 
Your use of the Mobile Application, Web Services and your purchase of Products is expressly conditioned upon your agreement to these Terms of Use. If you do not consent to these Terms of Use, you are not permitted to use FotoGenie Smart Photos™ or any Ubergram, LLC Services. If you access the Services on behalf of a company or other entity, you warrant that you are an authorized representative of such company or entity with the right to bind such company or entity to these Terms of Use.
 
The Services are not targeted towards, nor intended for use by, anyone under the age of 13. If you are between the ages of 13 and 18, you may use the Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Use.
 
These Terms of Use contain provisions that govern how claims that you and Ubergram, LLC have against each other are resolved. These Terms of Use also contain provisions requiring you to resolve certain disputes or claims relating to your use of the Services by binding arbitration, rather than in court. If you do not consent to such terms, you are not permitted to use FotoGenie Smart Photos™ or Ubergram, LLC Services.
 
Ubergram, LLC reserves the right to change, modify, revise or otherwise amend any provision of these Terms of Use, and any other terms, policies or guidelines governing your use of the Services, at any time at its sole discretion by providing notice that the Terms of Use have been modified. Such notice may be provided by sending an email, or by posting a notice on the Site, or by posting the revised Terms of Use on the Site and revising the date at the top of these Terms of Use or by such other form of notice as determined by Ubergram, LLC. Your continued use of the Services, or your purchase of any Products or the Services following the posting of the revised Terms of Use or other notice will constitute your acceptance of such changes or modifications. Otherwise, any changes or modifications will be effective within thirty (30) days of the posting of the revisions on the Site unless you notify Ubergram, LLC within such thirty (30) days that you do not agree to the changes and stop using the Services. Therefore, you should review these Terms of Use whenever you access the Services and at least every thirty (30) days to make sure that you understand the terms and conditions that will apply to your use of the Services. Our Ubergram, LLC & FotoGenie™ Privacy Policy provides information on how Ubergram, LLC collects, uses and discloses information from all users of the Services and/or information obtained through your purchase of Products through the Services.
 
A.      GENERAL TERMS
 
1.     Additional Policies:
 
These Terms of Use and the following additional Ubergram, LLC terms and policies (as applicable) together constitute a binding agreement between you and Ubergram, LLC. All such additional policies are incorporated into these Terms of Use as applicable and collectively govern your use of the Services and/or purchase of Products.
 
Subscription Services Terms:
 
Ubergram, LLC's photo content creation, analytics subscription or analytics services (collectively the "Subscription Services") provide an online platform that enables our users to capture photographs ("Photos") post them to social media and generate brand engagement analytics. We may choose to subcontract third-party companies or purchase analytics services to provide you with additional social media metrics features and product offerings. Photos and Brand Engagement Analytics may collectively be referred to herein as "Media". By purchasing or subscribing to or using any Ubergram, LLC Subscription Services, or Third-Party Services we deem integral and necessary to provide you with premium analytics packages and products,  you agree hold Ubergram, LLC harmless for any deficiencies, potential hardware or software malfunctions, content or data loss, or any additional acts or accidental occurrences that may potentially compromise the Terms set forth herin, to be bound by and accept the Ubergram, LLC Subscription Services Terms set forth in Section B below.
 
Terms of Sale:
 
Our Terms of Sale set forth in Section C below contain additional terms, conditions and policies applicable to your purchase of Products through the Services. By using the mobile application, FotoGenieApp, or by ordering Photos, Products or Analytics through the Services, you agree to be bound by and accept the Terms of Sale.
 
Model / Mobile Application Appearance Release: 
 
By downloading the mobile application, FotoGenieApp, agreeing to the terms and conditions herein, or signing FotoGenie’s digital Model Release form, I hereby certify that I am at least 18 years old and am legally responsible for upholding the terms of the FotoGenie Model Release. In consideration of being provided with digital copies of the Images captured via FotoGenieApp, or in any Photo Shoot related to FotoGenie or its Products and Sevices, the receipt of which is hereby acknowledged, I grant the right capture and use photographs of my likeness as I am photographed by FotoGenie or its representatives (Pro Lensers), photographers, assigns, officers, partners, affiliates, licensees, and legal representatives the irrevocable right to use my image in all forms and in all manners, including composite or distorted representations, for advertising, trade and all commercial purposes.
I hereby waive any and all rights to inspect or approve the mastered product, including written copy that may be created in connection therewith. 
 
 
License Agreements:
 
SHARED PHOTO(S) COPYRIGHT & RIGHTS OWNERSHIP: ***(A special note to the Photographer: Read this entire clause to understand how Ubergram, LLC openly shares the rights to the photos you create. When requested, we will sign over exclusive rights to you so you can sell them for stock imagery, gallery showings, other commercial purposes etc.)***   Any and all photo(s), works, ideas, discoveries, products, or other information (collectively, the "Work Product(s)") developed in whole or in part by the Photographer, Customer or Ubergram, LLC in connection with the Services are the exclusive property of Ubergram, LLC. Ubergram, LLC reserves the right to use all Work Products for its own commercial purposes including advertising on Social Media, its websites and any print materials. Ubergram, LLC with NOT sell individual photos to "Photo Stock" archives - that right is retained solely by the Customer and/or Photographer, but must be granted in writing by Ubergram, LLC prior to the sale or distribution of the Work Product(s). 


In an effort to effectively "share" commercial use rights and to make it possible for the Customer and the Photographer to sell the Work Product(s) for his or her own personal or professional purposes, Ubergram, LLC retains the right to negotiate and/or entirely release ownership of its exclusive rights as follows: Upon written request for a specific photo or photos, Ubergram, LLC may decide to release exclusive commercial-use and ownership rights of any Work Product(s) pending further review and given enough time to remove said photo(s) from any and all marketing and advertising materials that might potentially conflict with a Third Party Agreement. As such, Customers and Photographers must submit all requests in detail to support@fotogenieapp.com. Ubergam, LLC will make every effort to release Exclusive Rights to any photo(s) when possible.

 
Once the Photographer and/or Customer signs a separate Exclusive Rights Agreement with a Third Party Company or Individual Licensing Party, Ubergram, LLC shall be held harmless and is not responsible for any violation of Third-Party agreements between The Customer, and/or the Photographer and those Third Party Companies, Subcontractors, Affiliates or Assignees.


If Photographer or Customer determines that it is necessary to obtain Exclusive Commercial Rights for a photo or photos, it is Photographer's and/or Customer's responsibility to obtain all applicable Photo Rights and Licenses in perpetuity for any work or projects, contracted, implied or otherwise conducted with Ubergram, LLC, it’s affiliates, subcontractors, licensees and assignees. None shall be deemed responsible for any violation of Third Party Agreements not previously authorized directly by Ubergram, LLC. The scope of the license rights granted by Ubergram, LLC will vary depending on the type of license that the new Content Owner designates to such Media. Ubergam, LLC assumes no responsibility for the violation of any agreements between you, The Customer and any Third Party Contractors, Companies, Affiliates or Assignees. 

Notwithstanding, Photographer and Models must agree to the Terms and Conditions as well as the Appearance and Rights Release Forms set forth herein prior to working or being photographed in connection with the Services. Until such time that the Photographer secures a separate Exclusive Rights Agreement with a Third Party, Ubergram, LLC shall retain its exclusive rights to all Work Products, but hereby grants the Customer and Photographer the following NON-exclusive rights to use the images captured during any FotoGenieApp photo shoot:


What you may do:


Ubergram, LLC (herein collectively as "Content Provider") grants the Photographer and/or Customer a perpetual, non-exclusive, non-transferable, worldwide license to use the accompanying image(s) (collectively, "Media,") for permitted commercial purposes in perpetuity, as defined as:


Advertising, Promotion, Brochures, Packaging:


•       As part of a commercial website for promotional purposes (maximum 800x600 pixels) use
•       Prints, Posters, Flyers, Tearsheets for promotional purposes (NOT for resale)

•    Prints, Posters, or Other Commercial Display of For-Profit Media such as: Digital Downloads, Websites, Social Media Profiles, Mobile Applications, Magazines, Books, Newspapers, Other Printed Publications, Video, Broadcast, Theatrical Release.


What you may NOT do:


•     Photographer and/or Customer may NOT resell, relicense, redistribute Content to any Third Party Company, Stock Photo Archive or Individual for financial gain without express written permission from Ubergram, LLC. 
•      Photographer or Customer may NOT Use content as a derivative work, and reselling or redistributing such derivative work is prohibited. Media may NOT be used in a pornographic, obscene, illegal, immoral, libelous or defamatory manner.

•       Work Product(s) may NOT be incorporated into trademarks, logos, or service marks.

•       Media may NOT be made available for download via Third Party servers or file transfer protocols. 


Neither Content Provider nor UberGram, LLC will be liable for any claims, or incidental, consequential or other damages arising out of this license or Customer's/Photographer's use of the Work Products.
 
If you have any questions regarding Media and Work Products licenses, please contact: support@fotogenieapp.com
 
Copyright Policy:
 
Ubergram, LLC respects the intellectual property rights of others and expects its users to do the same. To that end, all Ubergram, LLC users are subject to the Copyright Policy set forth in Section E below.
 
Ubergram, LLC Application: 
 
Ubergram, LLC's mobile application, FotoGenie™ will be available for download by users via authorized application stores and other platforms (e.g., the Apple App Store). If you access and use the Services via the Ubergram, LLC FotoGenie™ mobile application or on a mobile phone, tablet or similar mobile device, you are bound by these Terms of Use.
 
2.     Mobile License
 
The Ubergram, LLC Services and all images, software, platforms, tools, graphics, data, text, code, the Ubergram, LLC Marks (as defined below) and other content and materials available on the Services (excluding User Content) and the selection and arrangement thereof (collectively, the "Ubergram, LLC Materials") are the property of Ubergram, LLC or its third party licensors and are protected by United States and international intellectual property laws.
Ubergram, LLC hereby grants you a limited, non-transferable, non-sublicensable, revocable license to access and use the Ubergram, LLC Materials solely in accordance with these Terms of Use. Except for the limited licenses granted hereunder, Ubergram, LLC reserves all rights not expressly granted and no such additional rights may be implied.
 
You acknowledge that (i) all right, title and interest in and to the Ubergram, LLC Materials, including all patents, copyrights, trade secrets, trademarks and other proprietary rights embodied therein or associated therewith, are and will remain with Ubergram, LLC or its third party licensors; (ii) no right or interest in the Ubergram, LLC Materials is conveyed other than the limited licenses granted herein; (iii) the Ubergram, LLC Materials are protected by copyright and other intellectual property laws; and (iv) Ubergram, LLC asserts that the Ubergram, LLC Materials embody valuable confidential and secret information of Ubergram, LLC or its licensors, the development of which required the expenditure of considerable time and money.
 
3. Ubergram, LLC TradeMarks:
 
You acknowledge that "UBERGRAM, LLC", the Ubergram, LLC and FotoGenie™ / FotoGenie Smart Photos™ name, logo, associated published or non-published bylines, slogans, the look and feel of the Services, and any other Product or Service names, logos or slogans of Ubergram, LLC contained in the Services are trademarks of Ubergram, LLC (collectively, the "Ubergram, LLC Marks") and may not be copied, imitated or used without the prior written permission of Ubergram, LLC. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Services are the property of their respective owners.
 
Ubergram, LLC may provide users with tools to download the Ubergram, LLC Marks via the Services. If you download or otherwise obtain the Ubergram, LLC Marks using such tools, Ubergram, LLC grants you a limited right to (i) use the Ubergram, LLC Marks for the sole purpose of referencing the Services and (ii) to use only those Ubergram, LLC Marks that are made available to you by Ubergram, LLC through such tools. Your use of any Ubergram, LLC Marks must be consistent with the size, dimensions, color and other characteristics of the Ubergram, LLC Marks and consistent with any other policies concerning the Ubergram, LLC Marks that we may post on the Site or otherwise make available through the Services from time to time. You may not (i) alter or change the appearance of the Ubergram, LLC Marks, (ii) use the Ubergram, LLC Marks in any manner that suggests Ubergram, LLC sponsors or endorses a product, service, promotion, contest, or (iii) use the Ubergram, LLC Marks for any other purpose deemed by Ubergram, LLC to be inappropriate. Ubergram, LLC has the right to revoke your right to use the Ubergram, LLC Marks at any time at our sole discretion.
 
4. Restrictions:
 
You agree that you will not (i) modify or alter the Ubergram, LLC Materials; (ii) create derivative works of the Ubergram, LLC Materials; (iii) decompile, disassemble, decode or reverse engineer the Ubergram, LLC Materials, translate the Ubergram, LLC Materials or otherwise attempt to learn the source code, structure, algorithms or internal ideas underlying the Ubergram, LLC Materials or reduce the Ubergram, LLC Materials by any other means to a human-perceivable form; or (iv) bypass, delete or disable any copy protection mechanisms or any security mechanisms in the Ubergram, LLC Materials.
Except as otherwise expressly permitted herein, you may not use the Services or the Ubergram, LLC Materials to engage in any of the following prohibited activities:
 
The collection, copying or distribution of any portion of the Ubergram, LLC Materials; any resale, commercial use, commercial exploitation, distribution, public performance or public display of the Services or the Ubergram, LLC Materials; modifying, “white-labeling” or otherwise making any derivative uses of the Services or the Ubergram, LLC Materials; scraping or otherwise using any data mining, robots or similar data gathering or extraction methods on or in connection with the Services; with the exception of Media made available by users for download, the downloading of any portion of the Ubergram, LLC Materials or any information contained therein; or
any use of the Services or the Ubergram, LLC Materials other than for their intended purposes.
Any use of the Services or of any Ubergram, LLC Materials other than as specifically authorized herein, without the express prior written permission of Ubergram, LLC, the applicable Ubergram, LLC user or the Content Owner, is strictly prohibited. Any such unauthorized use will result in the immediate termination of your rights under these Terms of Use and will constitute a breach of the license granted herein.
 
5. Hyperlinks:
 
You may create a text hyperlink to the Site, provided such link does not portray Ubergram, LLC or any of its Products or Services in a false, misleading, derogatory or otherwise defamatory manner. This limited right may be revoked by Ubergram, LLC at any time. You may not frame the Site or utilize framing techniques to enclose the Site, Ubergram, LLC Materials, Ubergram, LLC Marks or other proprietary information without Ubergram, LLC's express prior written consent.
 
As a part of the Services, we may provide you with access to and use of certain personalized pages and corresponding web addresses ("URLs") that you may customize. Ubergram, LLC does not guarantee the availability of any particular web page or URL and reserves the right, at any time and at our sole discretion, to reclaim, suspend, terminate and/or transfer any such web page or URL.
 
6. User Content:
 
The Services may enable you to upload, post and transmit Photos, Analytics, or Other Content (collectively as “Content” or “Photos”) to the Site or other portions of the Services (including to your user photo galleries) and also provide you with access to discussion forums, blogs and other interactive areas in which you or other users may post or transmit Photos, Videos, text, music, messages, information or other content or materials (collectively, including Media, the "User Content").
 
You retain all intellectual property rights in and to any User Content you post, upload or otherwise make available through the Services, including the copyright in and to your Media. Ubergram, LLC does not claim any ownership, right, title or interest in and to your User Content.
Notwithstanding the foregoing, by uploading and/or posting any User Content to the Site or otherwise by using the Services, you grant Ubergram, LLC a perpetual, nonexclusive and royalty-free right to use the User Content (and the user name that is submitted in connection with such User Content) as is reasonably necessary in order to enable Ubergram, LLC to provide the Services, including to display the User Content on the Services, to facilitate (at the Content Owner's direction) the license of Photos, or to process the sale of Products through the Services.
 
You represent and warrant that (i) you own or otherwise control all of the rights to the User Content that you post or transmit, or you otherwise have the right to post, use, display, distribute and reproduce such User Content and to grant the rights granted herein; (ii) the User Content you supply is accurate and not misleading; and (iii) the use and posting of the User Content you supply does not violate these Terms of Use and will not violate any rights of or cause injury to any person or entity.
 
7. Acceptable Use; Disclaimer
 
You are solely responsible for the User Content that you post or transmit using the Services and you agree not to post, transmit or otherwise publish through the Services any of the following:
 
User Content that is unlawful, defamatory, obscene, pornographic, indecent, lewd, sexually suggestive, hateful, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable or harmful, including without limitation: 
 
Photos, Videos or other User Content containing nudity that would be unacceptable in a public museum where minors visit; User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, endanger national security, or that would otherwise create liability or violate any local, state, national or international law; User Content that may infringe or violate any patent, trademark, trade secret, copyright or other intellectual or other proprietary right of any party; User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity; unsolicited promotions, political campaigning, advertising or solicitations; private information of any third party, including, without limitation: addresses, phone numbers, email addresses, social security numbers and credit card numbers; viruses, corrupted data or other harmful, disruptive or destructive files; and User Content that, in the sole judgment of Ubergram, LLC, is objectionable, harmful or which restricts or inhibits any other person from using or enjoying the Services, or which may expose Ubergram, LLC or its users to any harm or liability of any nature.
 
Although we prohibit certain activities in these Terms of Use, Ubergram, LLC does not make any representation or warranty that the User Content you may encounter through your use of the Services complies with these acceptable use provisions or the Terms of Use. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. These Terms of Use do not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by these acceptable use provisions.
 
Ubergram, LLC reserves the right (but is not obligated) to (i) review or screen any User Content submitted to the Site or otherwise submitted through the Services; (ii) edit any User Content posted on the Services; and/or (iii) remove any User Content from the Services for any reason, at any time, without prior notice, at our sole discretion. Ubergram, LLC will have no liability or responsibility to users of the Ubergram, LLC Services or any other person or entity for performance or nonperformance of such activities. Ubergram, LLC's enforcement of the acceptable use provisions set forth in these Terms of Use with respect to User Content in some instances does not constitute a waiver of our right to enforce such provisions in other instances involving similar User Content.
 
8. Your Account:
 
Certain activities on the Services require you to register and create an account. In order to create an account, you must be 13 years of age or older. By registering for an account, you represent and warrant that you are at least 13 years of age and that all information you provide in the registration form ("Registration Data") is complete and accurate. Ubergram, LLC reserves the right to refuse access to the Services to anyone at any time, with or without cause at its sole discretion. You agree to keep your registered email addresses and other Registration Data current and complete, as Ubergram, LLC may send important notices about your account from time to time. By registering for an account, you consent to receive communications from Ubergram, LLC about the Services by email and/or system messages consistent with the terms of our Privacy Policy.
 
9. Account Security:
 
You are solely responsible for maintaining the confidentiality of the passwords associated with your account and for restricting access to your passwords and physical access to your computer while logged into the Services. You accept responsibility for all activities that occur under your user account.
 
User Content that you post, upload or otherwise make available via the Services may be accessed, used and downloaded by other Ubergram, LLC users. You understand and acknowledge that any User Content contained in public areas of the Services, including any user galleries or other portions of the Services, is accessible to the public and could be accessed, downloaded, indexed, archived, linked to and republished by others including, without limitation, appearing on other websites and in search engine results. Ubergram, LLC provides security options and settings for your content available in the settings section of your applicable user account (the"Account Settings"), including the ability for you to designate certain portions of your account as unlisted, private, hidden or password-protected.
 
We use commercially reasonable security measures to protect your account and User Content consistent with your Account Settings. We cannot, however, guarantee absolute security of your account, your User Content or the Registration Data we collect, and we cannot promise that our security measures will prevent third party "hackers" from illegally accessing the Services or their contents. Ubergram, LLC is not responsible or liable for any third party access to or use of the User Content you post or your Registration Data. You are encouraged to read, understand and use the security settings and mechanisms in your Account Settings to manage how your User Content is accessed and used by the public and other users of the Services. You agree to immediately notify Ubergram, LLC of any unauthorized use of your account or passwords or any other breach of security, and you accept all risks of unauthorized access to the Registration Data, User Content and any other information you provide to Ubergram, LLC.
 
10. Third Party Services:
 
Ubergram, LLC may make third party content and services available on or through the Services ("Third Party Services") solely as a convenience to its users (for example, links to third party websites, software and other services). When you leave the Ubergram, LLC Services, you should be aware that these Terms of Use and all other Ubergram, LLC policies no longer govern your use of such websites and services or any content contained thereon.
 
Ubergram, LLC does not imply affiliation, approval, or control of any Third Party Services by making such Third Party Services available via the Ubergram, LLC Services. Where such Third Party Services may exist or be used for photo creation, analytics purposes or otherwise, Ubergram, LLC makes no claim or representation regarding, and accepts no responsibility for, the quality, accuracy, nature, ownership or reliability of Third Party Services. YOUR USE OF ANY SUCH THIRD PARTY SERVICES IS SOLELY AT YOUR OWN RISK AND SUBJECT TO THE APPLICABLE TERMS AND CONDITIONS AND PRIVACY POLICIES APPLICABLE TO SUCH THIRD PARTY SERVICES.
 
11. Advertisements and Promotions:
 
The Services may contain third party advertisements and promotions generated or posted by Ubergram, LLC users, Ubergram, LLC Vendors or other third party service providers.
 
Your business dealings or interactions with any third parties, including the Ubergram, LLC subcontractors, users or Ubergram, LLC Vendors, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such Third Parties. Ubergram, LLC does not endorse, approve, or control any such products, services, advertising or promotions posted to the Services by its users or the Ubergram, LLC Vendors. Ubergram, LLC is not responsible or liable for any loss or damage of any kind incurred as the result of your direct dealings with Ubergram, LLC Users, Subcontractors, Third Party Companies or Affiliates or a Ubergram, LLC Vendor or otherwise resulting from the presence of advertisements for third party products and services included on the Services.
 
12. DISCLAIMER OF WARRANTIES:
 
THE SITE, SERVICES, THE UBERGRAM, LLC MATERIALS, AND THE PRODUCTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, UBERGRAM, LLC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT AS TO THE SITE, THE SERVICES, THE UBERGRAM, LLC MATERIALS, AND THE PRODUCTS.
 
UBERGRAM, LLC DOES NOT REPRESENT OR WARRANT THAT THE UBERGRAM, LLC MATERIALS OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SERVICES, ITS SERVERS OR EMAIL SENT FROM UBERGRAM, LLC OR THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. UBERGRAM, LLC IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT, PHOTOS OR VIDEOS. UBERGRAM, LLC ALSO MAKES NO REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY, RELIABILITY OR SECURITY OF THE SERVICES AND WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO OR ANY MODIFICATION, SUSPENSION, UNAVAILABILITY, OR DISCONTINUANCE OF THE SERVICES OR THE PRODUCTS PROVIDED THEREON.
 
13. LIMITATION OF LIABILITY:
 
 
IN NO EVENT WILL UBERGRAM, LLC OR ITS OFFICERS, MANAGERS, DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, THIRD-PARTY CONTRACTOR OR COMPANY, SPECIAL INTEREST, INDIRECT OR OTHERWISE, CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE OR VIEW THE SITE, THE SERVICES, THE PRODUCTS, THE USER CONTENT OR THE UBERGRAM, LLC MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, INCLUDING ANY DAMAGES CAUSED BY OR RESULTING FROM YOUR RELIANCE ON ANY INFORMATION OBTAINED FROM UBERGRAM, LLC, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY TERMINATION, SUSPENSION OR OTHER FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, ACCIDENTS, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO UBERGRAM, LLC'S RECORDS, PROGRAMS OR SERVICES.
 
IN NO EVENT WILL THE AGGREGATE LIABILITY OF UBERGRAM, LLC, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITE, THE SERVICES, THE PRODUCTS, THE USER CONTENT OR THE UBERGRAM, LLC MATERIALS, EXCEED COMPENSATION YOU PAY, IF ANY, TO UBERGRAM, LLC FOR ACCESS TO OR USE OF THE SITE, THIRD-PARTY SERVICES OR THE SERVICES OR FOR THE PURCHASE OF PRODUCTS.
 
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
 
14. Indemnity:
 
You agree to defend, indemnify and hold harmless Ubergram, LLC and its officers, managers, employees, subcontractors, third-party company contractors, consultants, coders, programmers, assignees, affiliates and subsidiaries (collectively, the "Indemnified Parties"), and the Indemnified Parties' independent contractors, service providers and consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys' fees) arising out of or related to any User Content you post or otherwise transmit on or through the Services, your use of or inability to use the Services, the User Content, the Ubergram, LLC Materials or the Products, or the licensing of your Media to third parties through the Services, including any actual or threatened suit, demand or claim made against any of the Indemnified Parties and/or their independent contractors, service providers, employees, directors or consultants, arising out of or relating to your User Content, your conduct, your violation of these Terms of Use or your violation of the rights of any Third Party.
 
15. Dispute Resolution:
 
Applicable Law: 
 
Your use of the Services is subject to all applicable local, state, national and international laws and regulations. These Terms of Use and your use of the Services will be governed by and construed in accordance with the laws of the State of Florida applicable to agreements made and to be entirely performed within the State of Florida, without regard to its conflict of law provisions.
 
Agreement to Arbitrate & Waiver of Representative Actions: 
 
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH UBERGRAM, LLC AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. IF YOU DO NOT CONSENT TO THE TERMS OF THIS SECTION 15, YOU ARE NOT PERMITTED TO USE THE UBERGRAM, LLC SERVICES.
 
You and Ubergram, LLC agree to arbitrate any dispute arising from these Terms of Use or relating to the Services, Site or Ubergram, LLC Materials. ARBITRATION PREVENTS YOU FROM SUEING IN COURT OR FROM HAVING A JURY TRIAL. You and Ubergram, LLC agree: (i) to notify each other of any dispute within thirty (30) days of when it arises; (ii) to attempt informal resolution prior to any demand for arbitration; (iii) that any arbitration will occur in Collier County, Florida; and (iv) that arbitration will be conducted confidentially by a single arbitrator in accordance with the Rules of the American Arbitration Association ("AAA"), including the AAA's Supplementary Procedures for Consumer-Related Disputes (as applicable). The AAA's rules are available at www.adr.org. Other than class procedures and remedies described in these Terms of Use, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Notwithstanding the foregoing, you and Ubergram, LLC are NOT required to arbitrate any dispute in which either party seeks equitable or other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents.
 
The arbitrator will not be bound by rulings in prior arbitrations involving different Ubergram, LLC users but is bound by rulings in prior arbitrations involving the same Ubergram, LLC user to the extent required by applicable law. The arbitrator's award will be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
 
YOU AND UBERGRAM, LLC AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND UBERGRAM, LLC AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER UBERGRAM, LLC USERS.
 
Unless you and Ubergram, LLC agree otherwise, in the event that a court decides that any part of this Section 15 is invalid or unenforceable, you agree that any claim or dispute that has arisen or may arise between you and Ubergram, LLC must be resolved exclusively by a state or federal court located in Collier County, Florida. The remainder of the Terms of Use will continue to apply. You and Ubergram, LLC agree to submit to the personal jurisdiction of the courts located within Collier County, Florida for the purpose of litigating all such claims or disputes.
 
16. Feedback:


We welcome feedback from our users regarding ideas and suggestions for improvements to the Site, Services and Products. Ubergram, LLC will be entitled to use any such feedback without restriction, even if you designate such feedback as confidential. You hereby grant Ubergram, LLC a royalty-free, sublicensable, transferable, perpetual, irrevocable license in and to any feedback to use in any matter related to the operation of our business.
 
17. Assignment:
 
These Terms of Use are binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Notwithstanding the foregoing, you may not assign your rights under these Terms of Use without Ubergram, LLC's prior written consent. Ubergram, LLC will be permitted to assign its rights under these Terms of Use at its sole discretion.
 
18. International Users:
 
Ubergram, LLC is located in the State of Florida in the United States of America. If you access the Services from a country other than the United States, you agree that your transactions with Ubergram, LLC occur in the United States. You are responsible for compliance with all applicable laws, rules and regulations applicable to your use of the Services.
 
19. Severability:
 
If any provision of these Terms of Use is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of these Terms of Use will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the parties' intent.
 
20. Survival:
 
The terms and conditions of these Terms of Use which by their nature are intended to survive termination or expiration of Services (including, but not limited to, Indemnification, Warranty Disclaimer, Dispute Resolution and the Limitation of Liability) will survive any expiration or termination of these Terms of Use.
 
21. Questions or Comments
 
Ubergram, LLC is committed to keeping our users happy and satisfied with their use of the Services. If you have any questions, concerns, complaints or comments in any way related to your use of the Services, please contact us at: fotogenie@fotogenieapp.com


22. Photographer ("Pro Lenser") Payment & Tax Liability:


All payments will be deposited directly into the bank account specified by the Photographer at the time of initial registration or authorized change. Photographers are solely responsible for all taxes, fees and penalties associated with any earnings originating from the use of FotoGenieApp or its Services. Ubergram, LLC shall not be held responsible for any late fees, penalties or interest payments either assigned or assessed by any entity, Governmental Institution or Tax Board. Ubergram, LLC retains twenty (20) percent of the face value of every on-demand or scheduled shoot via the FotoGenieApp. An additional percentage for transaction processing may be withheld pending Ubergram, LLC's evolving agreements with third-party vendors or companies providing integral coding, scheduling and transactional services. Payments are subject to Ubergram, LLC's discretion and may change at any time without notice to Photographers. Our goal is to provide "fair" rates based on current market demand and conditions. 


​In addition, Ubergram, LLC and Sub-Merchant uses Braintree, a division of PayPal, Inc. (Braintree) for payment processing. In order for you to use Braintree's payment processing services, you must read and agree to the Commercial Entity User Agreement (CEA) available at https://www.braintreepayments.com/legal/cea-wells and the Payment Services Agreement available at https://www.braintreepayments.com/legal/gateway-agreement. By accepting this Agreement, you agree: (a) that you have downloaded or printed the CEA, and (b) that you have reviewed and agree to the CEA. If you have questions regarding the CEA or the PSA, please contact Braintree at 877.434.2894. 


Payment Disbursement. Ubergram, LLC must direct flow of payments.

Master Marketplace Account. Ubergram, LLC may configure the Marketplace to hold the payment with Braintree’s banking partner, in a Master Marketplace Account (“MMA”), until you release the funds using the APIs.

Payment Flow. Using the APIs, Ubergram, LLC will specify to Braintree the amount of the total transaction, the service fee Ubergram, LLC wishes to charge (if applicable), and specify the funds go into the MMA. At disbursement Ubergram, LLC will receive its fees and the Sub-Merchants will receive their portion of the payment at the specific rates Ubergram, LLC determines. These payments, transaction fees and rates may vary and are subject to change at Ubergram, LLC's sole discretion. In reasonable consideration, Ubergram, LLC agrees to make any payment, transaction fee or rates changes known, but is not subject to nor responsible for Sub-Merchant's consideration of said changes. Sub-Merchant agrees to comply with Ubergram, LLC and provide all Services regardless of payment, transaction fee or rates changes. As such, all changes are final until further notice. If Ubergram, LLC elects not to hold the payment, Ubergram, LLC can configure the funds to disburse as soon as they are available. Ubergram, LLC understands that it and Sub-Merchant will receive funds at the same time.

Termination of Sub-Merchants. (a) Ubergram, LLC may terminate a Sub-Merchant’s access to Ubergram, LLC's Marketplace in accordance with its own terms and conditions. (b) Braintree may terminate a Sub-Merchant’s access to Ubergram, LLC's Marketplace if (i) Braintree believes the Sub-Merchant is in breach of PayPal’s Acceptable Use Policy, (ii) Sub- Merchant poses a compliance risk, or (iii) in accordance with the Payment Services Agreement.

Tax Reporting. Braintree will provide pre-generated 1099-K tax forms for Sub-Merchants as required by the IRS. Ubergram, LLC will distribute these 1099-K tax forms to Sub-Merchants. Ubergram, LLC and Sub-Merchant will cooperate with Braintree in securing additional information needed from Sub-Merchants to satisfy IRS reporting obligations, including but not limited to Sub-Merchant’s bank account and routing numbers and Tax ID or Social Security Number. Ubergram, LLC and Sub-Merchant will provide Sub- Merchant transaction activity reports as reasonably requested.

Commercial Entity Requirements. If Ubergram, LLC has a Sub-Merchant whose annual sales reaches or exceeds $100,000, Braintree is required to have the Sub-Merchant obtain a separate merchant account with its Sponsor Bank. Ubergram, LLC and Sub-Merchant acknowledges this requirement and will provide assistance as required or remove the Sub-Merchant from Ubergram, LLC's Marketplace.

Liability. Ubergram, LLC and Sub-Merchant agrees that it shall be jointly and severally liable for all fines, chargebacks, refunds and other expenses incurred by its Sub-Merchants and for fees and expenses incurred in the enforcement of this Agreement. If deemed necessary due to personal fault or accidental lack or loss of photo content, Sub-Merchant agrees to reimburse Ubergram, LLC and Braintree, and or a third party Customer for any and all such liability incurred by the foregoing party. Ubergram, LLC and Sub-Merchant will indemnify, defend and hold harmless Braintree from any claims, losses and liabilities arising out of or related to any of the foregoing.

Compliance with Laws. Ubergram, LLC and Sub-Merchant assumes responsibility to comply with all applicable state-level Money Transmitter License rules and regulations. 


23. Photographer & Customer Privacy: 


All policies pertaining to personal security and privacy are clearly outlined in the Privacy Policy (www.fotogenieapp.com/privacy-policy.html) To the best extent possible, Ubergam, LLC seeks to secure all private personal information and does not share or disseminate any Customer or Photographer emails, account logins or personal information. Ubergram, LLC nor it's founders, employees, or legal assigns shall be held liable for any "identity theft" or loss of personal information. Customers, Users and Photographers use the FotoGenieApp Services at their own risk. 
 
B.      ADDITIONAL TERMS APPLICABLE TO PHOTO AND OR SUBSCRIPTION SERVICES ("SUBSCRIPTION SERVICES TERMS")
 
You may use the Subscription Services only in accordance with these Subscription Services Terms (and the Terms of Use of which they are a part). In the event of any conflict between these Subscription Services Terms and the other provisions of the Terms of Use, these Subscription Services Terms will control.
 
1. FotoGenie Smart Photos™ Analytics Subscriptions
 
The Subscription Services are available to users (i) who register for a free trial (when available) or for a subscription to the Subscription Services ("Subscription") and (ii) who pay in full the Subscription fees ("Subscription Fees") applicable to the level of Subscription selected by such user and agreed upon by written invoice, receipt and consent by Ubergram, LLC. (the "Subscription Plan").
 
If you wish to purchase a Subscription, we offer a free consultation and custom analytics quote. We will ask you to provide certain information in order to facilitate such purchase, including your credit card number, billing address and any related payment information as required by Ubergram, LLC (collectively,"Payment Information"). Ubergram, LLC may use a third party payment processor or Point-Of-Sale mobile “POS” device (e.g., Shopify, SmugMug, Amazon Payments or PayPal) to facilitate your payment of any Subscription Fees. Any Payment Information that you provide will be governed by the terms of our Privacy Policy. By submitting Payment Information via the Services, you warrant that you have the legal right to use any such credit card or other payment mechanism that you provide to facilitate the transaction.
 
1A. FOTGENIE FOTOS ON THE FLY™: 
 
FotoGenie Fotos On The Fly™ are the “on-demand” feature of www.fotogenie.co Fotos On The Fly Services are available to users (i) who purchase the Fotos On The Fly Photo Packages (ii) who agree pay in full the fees ("Fotos On The Fly™” Package Fees") applicable to the level of package selected by such user.
 
If you wish to purchase a Fotos On The Fly™ photos package, we will ask you to provide certain information in order to facilitate such purchase, including your credit card number, billing address and any related payment information as required by Ubergram, LLC (collectively,"Payment Information"). Ubergram, LLC may use a third party payment processor or Point-Of-Sale mobile “POS” device (e.g., Shopify, SmugMug, Amazon Payments or PayPal) to facilitate your payment of any Subscription Fees. Any Payment Information that you provide will be governed by the terms of our Privacy Policy. By submitting Payment Information via the Services, you warrant that you have the legal right to use any such credit card or other payment mechanism that you provide to facilitate the transaction.
 
2. Free Trials:
 
When you first register for the Subscription Services, Ubergram, LLC may offer you the ability to use the Subscription Services without charge for a limited trial period (a "Free Trial"). The duration of a Free Trial will be the number of days specified by Ubergram, LLC at the time of your registration for such Free Trial. You do not need to provide Ubergram, LLC with a credit card or other Payment Information in order to register for a Free Trial or Consultation. At the conclusion of your Free Trial, your user account will automatically terminate unless you elect to continue to use the Subscription Services by selecting a Subscription Plan and providing Ubergram, LLC (or our applicable third party payment processor) with valid Payment Information. Upon Ubergram, LLC's receipt of your Payment Information, you will be charged for the Subscription Fee applicable to your selected Subscription Plan. Ubergram, LLC may offer you the ability to register for a Subscription directly without the need to participate in a Free Trial.
3. Subscription Plans: 
 
Ubergram, LLC offers a variety of Subscription Plans designed to reflect the diverse needs of our users, each with its own features, descriptions, functionality and terms with respect to the use of the Services. A description of each Subscription Plan that is currently offered by Ubergram, LLC is available here. By purchasing a Subscription, (i) you agree to pay all applicable Subscription Fees and other charges in accordance with your selected Subscription Plan, pursuant to the renewal and termination provisions described below (including any applicable taxes, such as sales tax), and (ii) you agree that you are only entitled to the features and services applicable to the Subscription Plan that you select at the time you purchase a Subscription.
 
The Subscription Services are intended to be used by Ubergram, LLC users for the distribution and sharing of Photos and/or Analytics, as permitted under the user's applicable Subscription Plan. Ubergram, LLC, at its sole discretion, reserves the right to limit, suspend or terminate your use of the Subscription Services if Ubergram, LLC determines that you have violated these Subscription Services Terms or the Terms of Use.
 
Each Subscription is personal to the individual Ubergram, LLC user. You may not transfer or assign your Subscription to another individual, entity or Ubergram, LLC user unless such transfer or assignment is expressly permitted by the terms of your Subscription Plan.
 
From time to time, Ubergram, LLC may provide certain users with complimentary Subscriptions. Any user accessing the Services by using a free Subscription is bound by the Terms of Use and any applicable terms and conditions of these Subscription Services Terms (including Ubergram, LLC's right to terminate or cancel such Subscriptions).
 
4. Term and Automatic Renewal:
 
Your Subscription is valid commencing on the date in which Ubergram, LLC provides you with access to the Services pursuant to its receipt of your valid Payment Information (the "Commencement Date") and will last for the duration of the Subscription term that you select at the time of your registration for the Subscription Services (the"Subscription Term").
 
YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF EACH SUBSCRIPTION TERM FOR SUCCESSIVE SUBSCRIPTION TERMS OF THE SAME DURATION AS THE SUBSCRIPTION TERM ORIGINALLY SELECTED UNLESS THE SUBSCRIPTION IS TERMINATED AND/OR CANCELED BY YOU OR UBERGRAM, LLC PRIOR TO THE END OF SUCH SUBSCRIPTION TERM. SUCH RENEWAL WILL OCCUR AUTOMATICALLY ON THE APPLICABLE ANNIVERSARY OF THE COMMENCEMENT DATE. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME PRIOR TO THE END OF THE SUBSCRIPTION TERM THROUGH YOUR ACCOUNT SETTINGS IN THE SUBSCRIPTION SECTION, OR BY SENDING AN EMAIL TO: FOTOGENIE@FOTOGENIEAPP.COM WITH CLEAR WRITTEN NOTICE OF SUCH REQUEST. 
 
You agree that upon such renewal, the credit card or other designated payment method in your Account Settings will be billed the applicable Subscription Fee for your Subscription Plan then in effect at the time of renewal. If you disagree with these automatic renewal provisions, your sole remedy is to cancel or terminate your Subscription.
 
You may upgrade your Subscription Plan at any time during the Subscription Term by notifying Ubergram, LLC using your Account Settings or by purchasing an “Ongoing” or “Upgraded” Analytics Package. If you upgrade your Subscription Plan, the credit card or other designated payment method in your Account Settings will be billed for the difference in price, pro-rated for the remainder of your Subscription Term.
 
You acknowledge that the amount of the recurring charge at the time of Subscription renewal may differ from the Subscription Fees you originally paid for the Subscription Services if: (i) the Subscription Fee for your Subscription Plan changes during your applicable Subscription Term, or (ii) if you change your Subscription Plan or Subscription Term during the previous Subscription Term. Ubergram, LLC will notify you of any changes to the Subscription Fee prior to the date on which your Subscription Term will renew. You hereby agree to any such revised Subscription Fees and your sole remedy if you disagree with such changes is to terminate your account and stop using the Subscription Services.
 
5. Interruptions or Discontinuation of Subscription Services; Changes to Subscription Services and Terms of Use Ubergram, LLC reserves the right at any time, at its sole discretion and without notice, to suspend, modify, discontinue or permanently cancel the Subscription Services or any portions thereof, including the Subscription Plans and any policies, features and terms applicable thereto. If the Subscription Services, or any part thereof, to which you subscribe are permanently discontinued or canceled by Ubergram, LLC, your Subscription will terminate, and we will have no further liability to you. You acknowledge that the Subscription Services may be interrupted from time to time, with or without notice, for maintenance, upgrades, system updates or in the event of equipment failure or for any other foreseeable or non-foreseeable cause.
 
UBERGRAM, LLC WILL HAVE NO LIABILITY TO YOU FOR ANY INTERRUPTION, SUSPENSION, DISCONTINUANCE OR UNAVAILABILITY OF THE SUBSCRIPTION SERVICES FOR ANY REASON, OR FOR ANY LOSS OF POTENTIAL REVENUE, PROFITS, MONEY EITHER IMPLIED OR OTHERWISE, OR INABILITY TO ACCESS ANY MEDIA OR MATERIALS ON THE SERVICES.
 
6. Termination of Services:
 
You may request the termination of your Subscription at any time by canceling your account in the Subscription section of your Account Settings, or by sending an email to: fotogenie@fotogenieapp.com providing clear written notice of such request. When Ubergram, LLC receives your termination request, Ubergram, LLC will terminate your Subscription and notify you of such termination via email. Ubergram, LLC may request additional information from you prior to terminating your Subscription. Your Subscription is not terminated until you receive confirmation of such termination from Ubergram, LLC. If you terminate your Subscription, such termination will be effective immediately upon your receipt of such confirmation from Ubergram, LLC, regardless of whether there is any period of time remaining in your Subscription Term. By way of example and not in limitation of the foregoing, if you request the termination of your Subscription and you have two months remaining in your Subscription Term, such termination is effective immediately and you will not have access to the Subscription Services for the remaining two months of such Subscription.
 
Ubergram, LLC may terminate a Subscription, or any user's access to and use of the Subscription Services, at any time for any reason at its sole discretion, which such termination will be effective immediately. If you violate the Terms of Use, Ubergram, LLC at its sole discretion may (i) require you to remedy any violation thereof and/or (ii) take any other actions that Ubergram, LLC deems appropriate to enforce its rights and pursue available remedies.
 
All Subscription Fees are nonrefundable. Upon termination, cancellation or discontinuation of your Subscription for any reason, you will not be entitled to receive a refund for any Subscription Fees or other amounts previously charged to you, or for any unused portion of any Subscription Fees if such termination, cancellation or discontinuation occurs prior to the expiration of the applicable Subscription Term.
 
You may change your email, credit card information or other Payment Information for your account by using the Account Settings available in your user profile. It is solely your responsibility to keep your account information and Payment Information accurate and up-to-date. If the Payment Information for your account is invalid and cannot be billed for the renewal Subscription Fee at the time such Subscription Fee is payable and due, then Ubergram, LLC may terminate your account for nonpayment. If Ubergram, LLC does not have a current, working email address for your user account, then you may not receive important notices from us regarding your account, including notices regarding termination. Ubergram, LLC cannot guarantee that you will receive notice of the termination of your account.
 
7. Analytics Services:
 
Ubergram, LLC provides its users of the Subscription Services with the opportunity to obtain an “Ongoing” or “Upgraded” Smart Photos™ Analytics account for continued brand engagement and sales conversion analytics across multiple mobile and internet-based platforms. This analytics service may be provided in addition to or supplemented by third party companies and their respective analytics services (collectively as “Third Party Company” and/or “Analytics Services”). Analytics that fall under this category are governed by the terms of service for the Third Party Company, in addition to Ubergram, LLC’s Terms of Use. If you choose to utilize Ubergram, LLC’s analytics services, you may obtain a valid updated copy of said Third Party’s Terms of Service and Privacy Policy via written request only. You must email: fotogenie@fotogenieapp.com to make such a written request. Upon receipt of your request, Ubergram, LLC is required to procure and provide the relevant documents. At such time that the requested legal forms or documents are obtained, the Customer is required to review the Third Party Company's Terms of Service, as well as its policy regarding privacy and data gathering practices, and any other applicable policies, prior to use or continued use of the Ubergram, LLC service. In order to utilize the Ubergram, LLC analytics service, you may be asked to sign up for and obtain an Third Party service accounts. By agreeing to the Ubergram, LLC Terms of Use set forth herein, your consent to any and all Terms of Services set forth by Third Party Company’s and Analytics Services is implied and hereby approved. By agreeing to the Ubergram, LLC Terms of Use, you authorize Ubergram, LLC to decide what Third Party Companies or Analytics Services may be necessary to provide you with a premium quality custom image analytics product. By agreeing to Ubergram, LLC’s Terms of Use, you also agree and accept that any agreement pertaining to a Third Party Company or Analytics Service is directly and strictly between you and that Third Party. Ubergram, LLC is not a party to that agreement and shall be held harmless should any legal disputes or laws suits arise. Accordingly, any questions regarding a Third Party Company or Analytics Service must be directed to that entity, including, but not limited to, questions regarding billing and all Terms of Use. The ability to use the Third Party services in connection with the Ubergram, LLC Subscription Services is provided solely as a convenience to you, The Customer, and does not imply endorsement, approval, or control by Ubergram, LLC of any Third Party Company or Analytics Service. Ubergram, LLC makes no claim or representation regarding, and accepts no responsibility for, your use of any Third Party Company or Analytics Service, or for the quality, accuracy, nature, ownership or reliability thereof. Your use of any Third Party Company or Analytics Service through Ubergram, LLC is solely at your own risk. 
 
8. Backup Policy:
 
YOU ARE SOLELY RESPONSIBLE FOR CREATING AND MAINTAINING BACKUP COPIES OF ANY USER CONTENT YOU UPLOAD, POST OR MAKE AVAILABLE THROUGH THE SERVICES DURING ANY APPLICABLE SUBSCRIPTION TERM AT YOUR SOLE COST AND EXPENSE. YOU MAINTAIN RESPONSIBILITY AND LIABILITY FOR ANY LOSSES OR DAMAGES YOU INCUR FOR FAILURE TO MAINTAIN BACKUP COPIES OF YOUR USER CONTENT. UBERGRAM, LLC IS NOT LIABLE TO YOU FOR ANY DAMAGES OR LOSSES THAT RESULT FROM THE LOSS OR BREACH OF YOUR USER CONTENT IN CONNECTION WITH YOUR USE OF THE UBERGRAM, LLC SERVICES.
 
Ubergram, LLC uses third party vendors to host and store any Media that you upload to Ubergram, LLC through your use of the Subscription Services. We may require our vendors to maintain certain standards with respect to your User Content, but Ubergram, LLC does not guarantee that your User Content will be secure and/or available at all times during the Subscription Term. Ubergram, LLC does not guarantee that your User Content will be available on the Services after the termination of your Subscription, irrespective of the reason for such termination. It is your sole responsibility to create and maintain backup copies of any such User Content on a regular basis.
 
Please note that when User Content or other files are deleted (or your account is cancelled), those files will be deleted as soon as reasonable pursuant to Ubergram, LLC's data destruction policies and cannot be recovered by Ubergram, LLC or any third party vendor following deletion (including Amazon S3 if you have subscribed to a Ubergram, LLC Vault account).
 
9. Use of User Information:
 
 
In the event that you obtain access to any Ubergram, LLC user information, whether directly from Ubergram, LLC or otherwise, including user names and emails (e.g., through the purchase of your Products by a Ubergram, LLC user) (collectively the "User Information"), you agree that you may not use any such User Information in any manner except as may be specifically authorized by Ubergram, LLC to carry out the purpose for which such User Information was provided. Without limiting the foregoing, you may not share such User Information with any third parties. Further, you agree not to use such User Information in any manner that would be in violation of Ubergram, LLC's Privacy Policy. In no event will Ubergram, LLC be obligated to provide you with any such User Information. You agree that this provision will apply both during and after the term of your Subscription.
 
10. Independent Contractors: 
 
Use of the Ubergram, LLC Subscription Services or Mobile Application, FotoGenieApp, does not create a partnership, agency, joint venture or any employee-employer relationship between you and Ubergram, LLC or any Third Party Contractors. At all times the relationship between you and Ubergram, LLC or any Third Party Companies, Analytics Services, or Contractors will be that of independent contractors. You are responsible for all state, local, federal or other taxes that you are obligated to pay in connection with your use of Ubergram, LLC Subscription Services.
 
1. FotoGenie™ Photos and Smart Photos™ Pricing; Payment Terms:
 
In order to purchase Products through the Ubergram, LLC Services, you are required to provide valid Payment Information as required by Ubergram, LLC. Ubergram, LLC may terminate your order for Products and take such other action as appropriate if we are unable to process your Payment Information and you do not provide an alternative form of payment upon Ubergram, LLC's request. You agree to reimburse Ubergram, LLC for any and all costs incurred in collecting amounts owed by you to Ubergram, LLC or a Ubergram, LLC Vendor, including, without limitation, attorneys' fees and costs of collection agencies.
You are responsible for any taxes that you are obligated to pay or that Ubergram, LLC may collect from you in connection with your purchase of Products. If you do not pay the sales or other taxes or fees on a transaction, you will be responsible for the taxes or fees in the event they are later determined to be payable on the sale, and Ubergram, LLC reserves the right to collect the taxes or other related fees from you at any time. In certain jurisdictions, Ubergram, LLC may be required to collect and remit sales tax in connection with your purchase of Products. Any such taxes will be added to the purchase price and reflected on your invoice or receipt.
 
2. Product Downloads; Shipping Terms and Policies:
 
To provide you with digital downloads and physical prints of the photos you create with Ubergram, LLC photo services or any of its third party subcontracted photographers, we opened an ecommerce profile with SmugMug, Inc. (www.smugmug.com) The FotoGenie account on SmugMug is: www.fotogenie.smugmug.com. If you purchase Ubergram, LLC photo content via its website, www.fotogenieapp.com, such content and downloads may be made available to you upon SmugMug, Inc and Ubergram, LLC's receipt of your valid Payment Information. Ubergram, LLC may also choose to deliver Materials and Digital Assets via a secure DropBox (www.dropbox.com) link to an online FTP server. All use of either of these third-party delivery protocols is subject to termination pending the Terms & Conditions agreed to by the User while using those Services. Ubergram, LLC shall be held harmless for any delays, loss of content or data related to images hosted on the SmugMug, Inc. website. Any questions or concerns arising from the use of SmugMug, Inc. services, should be directed to their appropriate Customer Service Departments. We are also happy to help you resolve any outstanding concerns at: fotogenie@fotogenieapp.com
 
If you purchase Photo prints or other physical medium Products (i.e., photo books or other photo merchandise), Ubergram, LLC will use its commercially reasonable efforts (and our Ubergram, LLC Vendors such as SmugMug, Inc. will use commercially reasonable efforts) to ship all orders for such Products within the estimated delivery time applicable to various methods of shipping available at the time you place your order. Ubergram, LLC is not responsible for any delays in shipping. Ubergram, LLC or the Ubergram, LLC Vendors reserve the right to substitute another carrier of equal or lesser cost to deliver your order at our discretion. All shipping charges are your responsibility. Please see our Shipping Charges for additional detail. Shipping charges will be included in the SmugMug, Inc. shopping cart and can be viewed on a summary screen prior to finalizing your order. The shipping charge shown during the SMugMug, Inc. Product checkout process is subject to verification and to correction or change without notice, provided that if the actual shipping charge is more than the amount shown in your shopping cart, SmugMug, Inc. will contact you with the correct shipping costs before processing your order, and you will have an opportunity to cancel your order. All orders are shipped FOB shipping point. Title to the physical medium of the Products passes from Ubergram, LLC to you upon shipment. If an item in your order is temporarily out of stock, SmigMug, Inc. may hold your order until it is complete prior to shipment.
 
3. Return Policy: 
 
From lens to product page, your satisfaction is guaranteed - 100%. Ubergram, LLC unconditionally guarantees your satisfaction with any Photos or Analytics that you purchase through our website or mobile app. If you are unsatisfied with any Photos, Analytics or other Products you have purchased, we will gladly accept the return of any Product you ordered for any reason within fourteen (14) days of your receipt of the Product. Upon receipt of an explanation of the returned Product, we will either reshoot or reanalyze your campaign or offer a full refund of the purchase price, whichever you prefer. To request a refund or replacement for any Service or Product, please contact us first at: fotogenie@fotogenieapp.com. Please do not contact your credit card company to dispute a charge before contacting Ubergram, LLC.
 
4. Product Delivery, Availability & Pricing:
 
Ubergram, LLC promises to deliver no more than one (1) full resolution image for a "5 for FREE" Shoot, no more than ten (10) full resolution images for a "10 For 10" Shoot and no more than the "best" 10% of full resolution images for each "Snap Shot" Shoot. All images are subject to removal from online servers at Ubergram, LLC's discretion and shall not be made available to the Customer online after twenty-four (24) hours of initial posting. Customer may request access to Digital Assets after that twenty four hours upon written request to: support@fotogenieapp.com. Ubergram, LLC or the Ubergram, LLC Vendors may revise or discontinue Photo, Analytics or Product options at any time without prior notice, and Products may become unavailable even after an order is placed. All prices are subject to change without notice.
 
5. Product Descriptions; Pricing; Errors:
 
Ubergram, LLC strives to maintain accurate information in the Services and to eliminate any errors. However, we do not warrant that Product descriptions, Photos, Analytics, pricing or other Ubergram, LLC Materials are entirely accurate, complete, reliable, current, or error-free. 
 
In the event of an error, whether contained in the Services, in an order confirmation, in processing an order or otherwise, we reserve the right to correct such error and charge the correct price or cancel the order, and your sole remedy in the event of such error is to cancel your order.
 
5A: Photo Re-Touching & Mastering:
 
No retouching, mastering or any "post-production" work on photos is promised prior to delivery. All photos shall be delivered to the Customer in a full-resolution, "RAW" format. To provide you with superior images and photo-based marketing content, we offer a variety of professional photo touch-up and mastering services. Ubergram, LLC or a third party Ubergram, LLC Vendor assigned to your account reserves the right to format, manipulate or otherwise modify Photos as may be required to satisfy a particular order. This “photo mastering” work is inherently “creative” and therefore entirely subjective. We maintain the original copies of all digital photos or content we create for you. If you determine that the mastering work completed on your photos does not meet your quality control standards, we will reprocess them free of charge. 
 
6. Disclaimer of Warranties
 
THE FOREGOING RIGHT TO RETURN ANY ORDER WITHIN FOURTEEN (14) DAYS IS YOUR SOLE AND EXCLUSIVE REMEDY, AND UBERGRAM, LLC'S SOLE AND EXCLUSIVE LIABILITY, WITH RESPECT TO THE PURCHASE OF ANY PRODUCTS USING THE SERVICES, AND UBERGRAM, LLC EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PURCHASE OF ANY PRODUCTS.
 
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
 
D. LICENSE AGREEMENT
 
These License Agreement terms apply to Content Owners who have subscribed to an “Ongoing” or “Upgraded” Smart Photos™ Analytics Option or Subscription Plan granting such Content Owner the ability to license Media through the use of the Services. Certain Ubergram, LLC users may be entitled to license digital versions of such user's Photos to other Ubergram, LLC users for an applicable license fee under the terms of such user's written request. If you would like to license content to another Ubergram, LLC user, please contact us via email to make proper arrangements: fotogenie@fotogenieapp.com
 
1. Rights Granted by Content Owner: 
 
By uploading or posting Photos to be licensed to Ubergram, LLC or other users, Content Owner hereby grants to Ubergram, LLC the right to facilitate the licensing by Content Owner of Photos posted on Ubergram, LLC to a licensee according to the licensing designation (a  Commercial Use License or Personal Use License) identified by the Content Owner or Ubergram, LLC upon submission of the Photos.
 
2. Content Owner Responsibilities
 
Content Owner is responsible for all Photos posted to Ubergram, LLC through the Services, including without limitation the designation of Photo license types (either personal or commercial) and the setting of license fees (if applicable) through the tools available in Content Owner's Account Settings.
 
3. Media Submission and Licensing: 
 
As set forth in the Terms of Use, Photos submitted to Ubergram, LLC through the Services or mobile application, FotoGenieApp may be rejected or removed from the Services at any time for any reason or for no reason at Ubergram, LLC's sole discretion.
 
Photos designated for commercial license should be free from any distinguishable third party names, trademarks, logos, copyright designs, works of art, architecture, or any other depictions requiring additional rights. Content Owner understands and agrees that all Photos are licensed directly by the Content Owner subject to the license and the license type and the license fees (if applicable) for Photos as chosen by Content Owner. Ubergram, LLC merely facilitates and enables such license and does not maintain any responsibility or liability for the Photos.
 
So long as Content Owner has agreed to make the Photos available through Ubergram, LLC Services or the mobile application, FotoGenieApp there will not be any restraint on the licensing of such Photos through the Services to any Ubergram, LLC users to the fullest extent possible, according to the type of license provided by the Content Owner.
 
4.    Representations and Warranties of Content Owner
 
Content Owner represents and warrants to Ubergram, LLC that:
 
Content Owner owns (or has legal right to represent and license) all intellectual property rights, title and interest in and to all Photos, including applicable copyrights, submitted through the Services and has the right to grant all licenses granted herein without violating the rights of any third party; If the Content Owner who is agreeing to these Terms of Use is an agent of the copyright owner(s), then the Content Owner has been granted full authority of the copyright owner(s) to enter into this agreement; All information concerning all Photos provided by Content Owner to Ubergram, LLC through the use of the Services is, to the best of Content Owner's knowledge, true and accurate; and All Photos submitted or posted by Content Owner have all necessary releases, consents and permissions required to grant the licenses granted under the applicable license, including, without limitation, valid Model Releases and Property Releases for Photos depicting recognizable people (living or dead) and private properties, permissions regarding posting Photos containing individuals under the age of 18, and all written permission regarding all distinguishable trademarks.
 
5. Definitions:
 
Capitalized terms used but not defined in these Terms of Use above will have the following meanings:
"Commercial Use License" means a licensing type in which the licensee is entitled to use the Photos or Videos subject to the commercial use license.
 
"Model Release" means a written release signed by or on behalf of any living person or the estate of a deceased person who is depicted in whole or in part in any Photos.
 
"Personal Use License" means a licensing type in which the licensee is entitled to use the Photos subject to the personal use license.
 
"Property Release" means a written release from the owner and/or occupier of any property that is depicted in whole or in part in any Photos.
 
E. Copyright Policy:
 
In accordance with the Digital Millennium Copyright Act of 1998 ("DMCA"), the text of which may be found on the U.S. Copyright Office website athttp://www.copyright.gov/legislation/pl105-304.pdf, and other applicable laws, Ubergram, LLC has adopted a policy of terminating, in appropriate circumstances and at Ubergram, LLC's sole discretion, the accounts of users who are deemed to be repeat infringers. Ubergram, LLC may also, at its sole discretion, limit access to Ubergram, LLC's website and services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. Ubergram, LLC will respond to claims of copyright infringement committed using Ubergram, LLC that are reported to Ubergram, LLC's Designated Copyright Agent, identified in the sample notice below.
 
If you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
 
If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Ubergram, LLC Services by completing the following DMCA Notice of Alleged Infringement and delivering it to Ubergram, LLC's Designated Copyright Agent.
 
Upon receipt of the Notice as described below, Ubergram, LLC will take whatever action, at its sole discretion, it deems appropriate, including removal of the challenged material from the Ubergram, LLC Services.
DMCA Notice of Alleged Infringement ("Notice"):
Identify the copyrighted work that you claim has been infringed, or if multiple copyrighted works are covered by this Notice you may provide a representative list of the copyrighted works that you claim have been infringed.
 
Identify the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Ubergram, LLC Services where such material may be found.
 
Provide your mailing address, telephone number, and, if available, email address.
 
Include both of the following statements in the body of the Notice: (i) "I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)"; and (ii) "I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
 
Provide your full legal name and your electronic or physical signature.
 
Deliver this Notice, with all items completed, to Ubergram, LLC's Designated Copyright Agent:
 

Designated Agent
George Mantzidis, Esq.
Address of Designated Agent
1185 Immokalee Road,
Suite 110
Naples, FL 34110
Email & Phone of Designated Agent
George@gmanlaw.com
Tel: 239.438.4609
Fax: 239.254.0202

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©2016 Ubergram, LLC.

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Ubergram, LLC & FotoGenie ™ Terms & Conditions of Use:
 
Updated: 5.20.2016