Updated January 15, 2019
Welcome to the Ubergram, LLC FotoGenie™ website and mobile application, FotoGenie, 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.
A. GENERAL TERMS
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 herein, 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 Services, 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 your photos 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 firstname.lastname@example.org. Ubergram, 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. Ubergram, 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.
COMMERCIAL-USE PHOTO LICENSING: Depending on the commercial nature and intended use of the content being created, Ubergram, LLC may request Customer to pay Commercial Licensing Fees. These fees may include Royalty Free Licensing Fees to retain the non-exclusive rights to use photos commercially in perpetuity or for a multi-use, limited time period. Additional fees may be required for any and all future commercial-use licensing purposes. Should a Commercial Licensing Fee be requested, all fees must be paid by Customer as part of the fulfillment of this Service Agreement. All fees will be negotiated and secured by Ubergram, LLC before Customer may use any images for commercial purposes. Any commercial-use of images created by Ubergram, LLC prior to securing commercial licensing fees is strictly prohibited.
Commercial-Use Licensing is calculated based on Customer’s projected ad-spend and is adjusted on a sliding scale according to international photography industry standards. In an effort to keep Customer’s costs to a minimum, FotoGenie issues licensing agreements at lower rates than all our competitors and commercial agencies. For a full explanation of licensing fees, please read our Commercial Licensing Guide
If you have any questions regarding Media and Work Products licenses, please contact: email@example.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.
2. Mobile License
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.
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:
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.
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.
8. Your Account:
9. Account Security:
You are solely responsible for maintaining the confidentiality of the personal contact information and 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 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. Affiliate Marketing, Advertisements & 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 NON-INFRINGEMENT 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.
15. Dispute Resolution:
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.
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.
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, sub-licensable, transferable, perpetual, irrevocable license in and to any feedback to use in any matter related to the operation of our business.
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. Please refer to our GDPR compliant Addendum for further details about how we protect your personal information and privacy.
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: firstname.lastname@example.org
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:
At the time the a shoot is scheduled, the Pro Lenser (Photographer) is given the Customer's personal or private business contact information which may include, but is not limited to, email, phone number, address, social media profiles, personal or business website URLs, assistant names, parking information, office suite numbers, apartment numbers etc. The Pro Lenser may only use this information to contact the Customer as a means of providing Services that have been booked through authorized FotoGenie channels.The Pro Lenser may not disseminate this information nor use it to solicit further business. Any violation of this protocol is subject to criminal prosecution under the laws and statutes for unauthorized solicitation in the state where the violation occurred. Violations may be reported directly to Ubergram, LLC headquarters via email: email@example.com
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").
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.
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.
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.
4. Subscription Term & 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
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: firstname.lastname@example.org 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.
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:
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:
10. Independent Contractors:
C. 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: email@example.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, SmugMug, Inc. may hold your order until it is complete prior to shipment.
3. 100% Guarantee | Refund & Return Policy:
From lens to digital file or physical print, your satisfaction is 100% guaranteed. No matter what challenges may occur with your shoot, we provide top quality personal service to all our Users - both Customers and Pro Lensers. Please do not contact your credit card company to dispute a charge before contacting Ubergram, LLC first. Because of the subjective, creative nature of our products and services, every Refund Request is assigned to a highly trained Pro Lenser Liaison who will moderate and resolve all disputes that may arise. Should the Pro Lenser be found at fault for any dispute, our specialists are authorized to provide refunds to Customers immediately. However, if a dispute requires a detailed moderation, our liaisons will work to achieve a fair compromise. For further details, please also review our Shoot Cancellation Policy below.
To request a refund, all Customers must submit a Cancellation / Refund Request Form. To qualify for a refund, all Customers must submit a Photo Review Form To be considered valid for a claim, your Photo Review Form must be time-stamped within the first half of the scheduled time of your shoot. So for example, if you scheduled a two-hour shoot from 1PM to 3PM, you must submit your Photo Review Form by 2PM. If your shoot ends and you do not submit your Photo Review Form, no worries - we'll assume you are 100% satisfied. However, we cannot offer refunds of any kind to Customers who do not review their photos and submit the form during their shoots. We have to do this to protect our Pro Lensers who are also Customers using FotoGenie as a booking service. As a result, we have a responsibility to ensure their work is both appreciated and fairly compensated. Due to the potentially subjective nature of these Services, we ask that you please comply so everybody gets what they want from FotoGenie.
- 100% Booking Fee Refunds: Granted only if shoot is cancelled within the first half of the scheduled shoot time and the Customer and Pro Lenser mutually agree to cancel the shoot.
- 50% Booking Fee Refunds: May be granted based on upon the Pro Lenser Liaison's discretion. If for example, the Customer does not "like" the photos that have been submitted after the shoot, they may request a partial refund pending review of the Photo Review Form and Shoot Report. If a refund is required, only the Pro Lenser Liaison assigned to moderate the request can grant it. Otherwise, the Pro Lenser will be paid in full for completing the confirmed shoot Services.
4. Shoot Cancellations
To cancel a shoot, the Customer must submit the Cancellation / Refund Request Form online or via the mobile application from which the shoot was booked. Customers may not choose their Pro lenser nor may they cancel a live shoot on the basis that they feel the Pro Lenser might not be "up to the task" of producing their photos. All Customers are required to work with the Pro Lenser who confirmed their shoot. However, Customer may cancel a live shoot upon the following conditions:
1. First, the Customer must fill out a Photo Review Form within the first half of the scheduled shoot time. No cancellations may be filed after the first half of scheduled time has elapsed.
2. The Customer's reason for cancellation must include, but is not limited to:
A. The Pro Lenser did not arrive on time or is not working efficiently to complete the shoot within the scheduled period.
B. The desired "quality" of images is not satisfactory - i.e. the images being captured are not in focus, are too dark, are not well composed etc.
C. The Pro Lenser is not open to suggestion or is not following directions about what images to capture.
D. The Pro Lenser is making inappropriate comments, or is not conducting him/herself in a professional manner.
E. The Pro Lenser did not arrive with the proper equipment to capture the photos described in the Shoot Description & Photo Assignment.
3. Both the Customer and Pro Lenser must mutually agree to end the shoot prior to the scheduled wrap time. Both the Customer's Photo Review and the Pro Lenser's Shoot Report must reflect this agreement and provide the same reason for cancellation.
For further details about specific scenarios in which shoots may be cancelled and or policies to resolve those scenarios, please review our Shoot Cancellation Policy scenario page.
4A. 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 Photo, Product or Service you ordered for any reason within 24 hours of your scheduled Shoot Time provided that you submit a written request for a refund via firstname.lastname@example.org or Refund Request Form. You must submit this request prior to wrapping the shoot. (See Section 3A, below) Subject to review and approval, upon receipt of an explanation of the returned Photo, Product or Service, we will either reshoot or reanalyze your campaign or offer a full or partial refund of the original purchase price. To request a refund or replacement for any Service or Product, please contact us first at: email@example.com. Please do not contact your credit card company to dispute a charge before contacting Ubergram, LLC.
4B. Shoot “Wrapped” Agreement:
When your shoot is done, your Pro Lenser will ask you if you are satisfied with the results of the shoot. Presuming you are, your Pro Lenser will assist you in completing the shoot and releasing payment to Ubergram, LLC by pressing the “Wrap Shoot” button at the bottom of your Shoot Summary. Once you press “Wrap Shoot” this is your approval of what has been captured. You agree that you have reviewed the work that was done, made the appropriate adjustments and given notes so that the images that were created are in fact what you want to purchase. Once wrapped, a Shoot is no longer active and payment is released to Ubergram, LLC. At this time, no further refunds may be requested or are granted. No exceptions.
5. Product Delivery, Availability & Pricing:
Ubergram, LLC promises to deliver no more than one (1) full resolution image for a "FREE Trial Shoot”, and no more than the top ten percent of “best” selects according to the Pro Lenser who captures the images. The Customer may request to see all the images captured in writing, but we highly recommend just trusting the Pro Lenser’s judgement. You may, on location or on set, identify which images (filenames) you definitely want the Pro Lenser to include in your selects. 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: firstname.lastname@example.org. 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.
6. 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.
6A: 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.
7. 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
D. 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: email@example.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.
"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:
George Mantzidis, Esq.
Address of Designated Agent
1185 Immokalee Road,Suite 110
Naples, FL 34110
Email & Phone of Designated Agent
DATA PROCESSING ADDENDUM
Effective Date: May 20, 2018
1. Additional Definitions.
The following definitions apply solely to this Data Processing Addendum:
a. the terms “controller”, “data subject”, “personal data”, “process,” “processing” and “processor” have the meanings given to these terms in EU Data Protection Law.
b. “Breach” means a breach of the Security Measures resulting in access to Ubergram, LLC’s equipment or facilities storing Your Controlled Data and the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Your Controlled Data transmitted, stored or processed by Ubergram, LLC on your behalf and instructions through the Services.
c. “Content” means your User Content and any content provided to us from your End Users, including without limitation text, photos, images, audio, video, code, and any other materials.
d. “EU Data Protection Law” means any data protection or data privacy law or regulation of Switzerland or any European Economic Area (“EEA”) country applicable to Your Controlled Data, including, as applicable, the GDPR and the e-Privacy Directive 2002/58/EC.
e. “GDPR” means the EU General Data Protection Regulation 2016/679.
f. “Security Measures” means the technical and organizational security measures set out here.
g. “Sub-Processor” means an entity engaged by Ubergram, LLC to process Your Controlled Data.
h. “Your Controlled Data” means the personal data in the Content Ubergram, LLC processes on your behalf and instructions as part of the Services, but only to the extent that you are subject to EU Data Protection Law in respect of such personal data. Your Controlled Data does not include personal data when controlled by us, including without limitation data we collect (including IP address, device/browser details and web pages visited prior to coming to Your Site) with respect to your End Users’ interactions with Your Site through their browser and technologies like cookies.
This Data Processing Addendum only applies to you if you or your End Users are data subjects located within the EEA or Switzerland and only applies in respect of Your Controlled Data. You agree that Ubergram, LLC is not responsible for personal data that Ubergram, LLC or you have elected to process through Third Party Services (such as email marketing CRMs like MailChimp or FTPs like SmugMug) or outside of the Services, including the systems of any other third-party cloud services, offline or on-premises storage.
3. Details of Data Processing.
3.1 Subject Matter. The subject matter of the data processing under this Data Processing Addendum is Your Controlled Data.
3.2 Duration. As between you and us, the duration of the data processing under this Data Processing Addendum is determined by you. You may terminate your account with us at any time. If you unsubscribe from our email lists, you will no longer be contacted about our services.
3.3 Purpose. The purpose of the data processing under this Data Processing Addendum is the provision of the Services initiated by you from time to time.
3.4 Nature of the Processing. The Services as described in the Agreement and initiated by you from time to time.
3.5 Type of Personal Data. Your Controlled Data relating to you, your End Users or other individuals whose personal data is included in Content which is processed as part of the Services in accordance with instructions given through your Account.
3.6 Categories of Data Subjects. You, Your End Users and any other individuals whose personal data is included in Content.
4. Processing Roles and Activities.
4.1 Ubergram, LLC as Processor and You as Controller. You are the controller and Ubergram, LLC is the processor of Your Controlled Data.
4.3 Description of Processing Activities. We will process Your Controlled Data for the purpose of providing you with the Services, as may be used, configured or modified from within your Account (the “Purpose”). For example, depending on how you use the Services, we may process Your Controlled Data in order to: (a) enable you to integrate content or features from a social media platform on Your Site; or (b) email your End Users on your behalf.
4.4 Compliance with Laws. You will ensure that your instructions comply with all laws, regulations and rules applicable in relation to Your Controlled Data and that Your Controlled Data is collected lawfully by you or on your behalf and provided to us by you in accordance with such laws, rules and regulations. You will also ensure that the processing of Your Controlled Data in accordance with your instructions will not cause or result in us or you breaching any laws, rules or regulations (including EU Data Protection Law). You are responsible for reviewing the information available from us relating to data security pursuant to the Agreement and making an independent determination as to whether the Services meet your requirements and legal obligations as well as your obligations under this Data Processing Addendum. Ubergram, LLC will not access or use Your Controlled Data except as provided in the Agreement, as necessary to maintain or provide the Services or as necessary to comply with the law or binding order of a governmental, law enforcement or regulatory body.
5. Our Processing Responsibilities.
5.1 How We Process. We will process Your Controlled Data for the Purpose and in accordance with the Agreement or instructions you give us through your Account when you sign up for the mobile app via the Apple App Store, Android device, Google Play or whenever you book a Service on any of Ubergram, LLC’s websites. You agree that the Agreement and the instructions given through your Account are your complete and final documented instructions to us in relation to your Controlled Data. Additional instructions outside the scope of this Data Processing Addendum require prior written agreement between you and us, including agreement on any additional fees payable by you to us for carrying out such instructions. We will promptly inform you if, in our opinion, your instructions infringe applicable EU Data Protection Law, or if we are unable to comply with your instructions. We will notify you when applicable laws prevent us from complying with your instructions, except if such disclosure is prohibited by applicable law on important grounds of public interest, such as a prohibition under law to preserve the confidentiality of a law enforcement investigation or request.
5.2 Notification of Breach. We will provide you notice without undue delay after becoming aware of and confirming the occurrence of a Breach for which notification to you is required under applicable EU Data Protection Laws. We will, to assist you in complying with your notification obligations under Articles 33 and 34 of the GDPR, provide you with such information about the Breach as we are reasonably able to disclose to you, taking into account the nature of the Services, the information available to us and any restrictions on disclosing the information such as for confidentiality. Our obligation to report or respond to a Breach under this Section is not and will not be construed as an acknowledgement by Ubergram, LLC of any fault or liability of Ubergram, LLC with respect to the Breach. Despite the foregoing, Ubergram, LLC’s obligations under this Section do not apply to incidents that are caused by you, any activity on your Account and/or Third-Party Services.
5.3 Notification of Inquiry or Complaint. We will provide you notice, if permitted by applicable law, upon receiving an inquiry or complaint from an End User, or other individual whose personal data is included in your Content, or a binding demand (such as a court order or subpoena) from a government, law enforcement, regulatory or other body in respect of Your Controlled Data that we process on your behalf and instructions.
5.4 Reasonable Assistance with Compliance. We will, to the extent that you cannot reasonably do so through the Services, your Account or otherwise, provide reasonable assistance to you in respect of your fulfillment of your obligation as controller to respond to requests by data subjects under Chapter 3 of the GDPR, taking into account the nature of the Services and information available to us. You will be responsible for our reasonable costs arising from our provision of such assistance.
5.5 Security Measures. We will maintain the Security Measures. We may change these Security Measures but will not do so in a way that adversely affects the security of Your Controlled Data. We will take steps to ensure that any natural person acting under our authority who has access to Your Controlled Data does not process it except on our instructions, unless such person is required to do so under applicable law, and that personnel authorized by us to process Your Controlled Data have committed themselves to relevant confidentiality obligations or are under an appropriate statutory obligation of confidentiality.
5.6 Sub-Processors. You agree that Ubergram, LLC can and may share Your Controlled Data with Sub-Processors in order to provide you the Services. We will impose contractual obligations on our Sub-Processors, and contractually obligate our Sub-Processors to impose contractual obligations on any further sub-contractors which they engage to process Your Controlled Data, which provide the same level of data protection for Your Controlled Data in all material respects as the contractual obligations imposed in this Data Processing Addendum, to the extent applicable to the nature of the Services provided by such Sub-Processor. A list of our current Sub-Processors is available upon request by sending an email to firstname.lastname@example.org. Provided that your objection is reasonable and related to data protection concerns, you may object to any Sub-Processor by sending an email to email@example.com. If you object to any Sub-Processor and your objection is reasonable and related to data protection concerns, we will use commercially reasonable efforts to make available to you a means of avoiding the processing of Your Controlled Data by the objected-to Sub-Processor. If we are unable to make available such suggested change within a reasonable period of time, we will notify you and if you still object to our use of such Sub-Processor, you may cancel or terminate your FotoGenie Account or, if possible, the portions of the Services that involve use of such Sub-Processor. Except as set forth in this Section 5.6, if you object to any Sub-Processors, you may not use or access the Services. You consent to our use of Sub-Processors as described in this Section 5.6. Except as set forth in this Section 5.6 or as you may otherwise authorize, we will not permit any Sub-Processor to access Your Controlled Data. Ubergram, LLC will remain responsible for its compliance with the obligations of this Data Processing Addendum and for any acts or omissions of any Sub-Processor or their further sub-contractors that process Your Controlled Data and cause Ubergram, LLC to breach any of Ubergram, LLC’s obligations under this Data Processing Addendum, solely to the extent that Ubergram, LLC would be liable under the Agreement if the act or omission was Ubergram, LLC’s own.
5.7 Ubergram, LLC Audits. Ubergram, LLC may (but is not obliged to) use external or internal auditors to verify the adequacy of our Security Measures.
5.8 Customer Audits and Information Requests. You agree to exercise any right you may have to conduct an audit or inspection by instructing Ubergram, LLC to carry out the audit described in Section 5.7. You agree that you may be required to agree to a non-disclosure agreement with Ubergram, LLC before we share any such report or outcome from such audit with you and that we may redact any such reports as we consider appropriate. If Ubergram, LLC does not follow such instruction or if it is legally mandatory for you to demonstrate compliance with EU Data Protection Law by means other than reviewing a report from such an audit, you may only request a change in the following way:
a. First, submit a request for additional information in writing to Ubergram, LLC, specifying all details required to enable Ubergram, LLC to review this request effectively, including without limitation the information being requested, what form you need to obtain it in and the underlying legal requirement for the request (the “Request”). You agree that the Request will be limited to information regarding our Security Measures.
b. Within a reasonable time after we have received and reviewed the Request, you and we will discuss and work in good faith towards agreeing on a plan to determine the details of how the Request can be addressed. You and we agree to use the least intrusive means for Ubergram, LLC to verify Ubergram, LLC’s compliance with the Security Measures in order to address the Request, taking into account applicable legal requirements, information available to or that may be provided to you, the urgency of the matter and the need for Ubergram, LLC to maintain uninterrupted business operations and the security of its facilities and protect itself and its customers from risk and to prevent disclosure of information that could jeopardize the confidentiality of Ubergram, LLC or our users’ information.
You will pay our costs in considering and addressing any Request. Any information and documentation provided by Ubergram, LLC or its auditors pursuant to this Section 5.8 will be provided at your cost. If we decline to follow any instruction requested by you regarding audits or inspections, you may cancel any affected Paid Services.
5.9 Questions. Upon your reasonable requests to us for information regarding our compliance with the obligations set forth in this Data Processing Addendum, we shall, where such information is not otherwise available to you, provide you with written responses, provided that you agree not to exercise this right more than one (1) time per calendar year (unless it is necessary for you to do so to comply with EU Data Protection Law). The information to be made available by Ubergram, LLC under this Section 5.9 is limited to solely that information necessary, taking into account the nature of the Services and the information available to Ubergram, LLC, to assist you in complying with your obligations under the GDPR in respect of data protection impact assessments and prior consultation. You agree that you may be required to agree to a non-disclosure agreement with Ubergram, LLC before we share any such information with you.
5.10 Requests. You can delete or access a copy of some of Your Controlled Data by emailing firstname.lastname@example.org For any of Your Controlled Data which may not be deleted or accessed through your Account, upon your written request, we will, with respect to any of Your Controlled Data in our or our Sub-Processor’s possession that we can associate with a data subject, subject to the limitations described in the Agreement and unless prohibited by applicable law or the order of a governmental, law enforcement or regulatory body: (a) return such data and copies of such data to you provided that you make such request within no more than ninety (90) days after the cancellation of the applicable Paid Services; or (b) delete, and request that our Sub-Processors delete, such data (excluding in the case of (a) or (b) any of such data which is archived on back-up systems, which we shall securely isolate and protect from any further processing, except to the extent required by applicable law). Otherwise, we will delete Your Controlled Data in accordance with our data retention policy. This Section 5.10 does not apply to personal data held by Third Party Services.
6. Data Transfers.
You authorize us to transfer Your Controlled Data away from the country in which such data was originally collected. In particular, you authorize us to transfer Your Controlled Data to the United States. We will transfer Your Controlled Data to outside the EEA using the Swiss-U.S. and EU-U.S. Privacy Shield Frameworks or another lawful data transfer mechanism that is recognized under EU Data Protection Law as providing an adequate level of protection for such data transfers.
The liability of each party under this Data Processing Addendum is subject to the exclusions and limitations of liability set out in the Agreement. You agree that any regulatory penalties or claims by data subjects or others incurred by Ubergram, LLC in relation to Your Controlled Data that arise as a result of, or in connection with, your failure to comply with your obligations under this Data Processing Addendum or EU Data Protection Law shall reduce Ubergram, LLC’s maximum aggregate liability to you under the Agreement in the same amount as the fine and/or liability incurred by us as a result.
In the event of a conflict between this Data Processing Addendum and the Terms of Service, this Data Processing Addendum will control.
You are responsible for any costs and expenses arising from Ubergram, LLC’s compliance with your instructions or requests pursuant to the Agreement (including this Data Processing Addendum) which fall outside the standard functionality made available by Ubergram, LLC generally through the Services.
George Mantzidis, Esq.
Address of Designated Agent
1185 Immokalee Road,Suite 110
Naples, FL 34110
Email & Phone of Designated Agent