End User License Agreement – Terms and Conditions
to Cover the Use of the Picture Marketing / Fotozap Platform and Accompanying Apps
Picture Marketing Inc., a corporation organized under the laws of California, and its associated company, subsidiaries and successors, are hereinafter collectively referred to as “PM”. This End User License Agreement (“EULA”) and Terms and Conditions document (the “Agreement”) governs your use of our family of Apps and the associated server-based platform (the “Services”). This Agreement also governs any free trial period, free use, or any “demo mode” usage. If you are entering into this Agreement on behalf of any company or other legal entity, you represent that you have the authority to bind such entity(s) and its affiliates to the terms and conditions stipulated in this Agreement, in which case the terms “You,” “Your,” or “Licensee” shall include the entity and its affiliates. If you do not agree with these Terms and Conditions stipulated in this Agreement, you may not use our Services.
If you are using products from PM which require a signed proposal, we consider you a “Client” and we utilize this EULA as an addendum to any Proposal, Order Form, or written agreement for services, products, equipment, or software licensing between PM and User (“hereinafter referred to as the “Order Form”) and shall be considered a part of the Order Form. The Order Form may contain additional information including but not limited to the scope of the contracted service, points of contact, date(s) of event, in-depth product descriptions, etc.
If you are using our services to view your images captured by us or by a Client then we consider you a “Guest” and this EULA, along with our published Privacy Policy stipulates the Terms and Conditions, where applicable, by which we govern usage.
Any new features, or additions, to the current Services, including the release of new tools, apps and/or resources, shall be subject to the Agreement. You can review and/or download the current version of this Agreement at: https://picturemarketing.com/terms
DEFINITIONS
The party granted certain rights in relation to PM products or Services is herein referred to as “Purchaser” and/or the “User” and/or the “Licensee.” Such terms are liberally used throughout this Agreement and are interchangeable. The Agreement applies whether or not the User(s) pay to utilize the system. “Users” also means individuals who are authorized by You to use the Services or Technology, and who have been supplied a user ID and password by You (or by Us at Your request). Users may include, but are not limited to, Your employees, consultants, contractors and agents, and third parties with which You transact business. Users is also used to refer to individual guests who may have had their images captured by any of our Client users.
“Licensed Program” refers to the FotoZap® Picture Marketing System proprietary software systems and methodologies, in all of their various forms, iterations, and uses, and any other software provided to User by PM.
“Device” refers to any type of photo capture or data capture hardware, including but not limited to an iPad, Tablet, Smartphone, Kiosk, Event Station, PDA, Mobile Device, or Mobile FotoZap® Camera Unit, whether purchased or leased from PM, or supplied by the User, and that is used to capture data, video, photos are any other type of media, which are, in turn, uploaded to the PM servers or used in conjunction with any PM-related technology, software or hardware.
“Licensed Equipment” refers to any Device that is leased to You by PM, or any other hardware or physical equipment of any kind provided to You by PM, for lease or rental usage, during the term of the Agreement.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the Licensee.
“Order Form” means the documents for placing orders hereunder, including addenda thereto, whether in online form, digital or PDF, or physical form, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto. By agreeing to the purchase or use the Services listed in an Order Form, an Affiliate agrees to be bound by the terms of the Order Form and of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
“Purchased Services” means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
“Patents” refers to U.S. Patent Nos. 6,085,195, 6,519,596 B1, and 6,523,034 B1, which cover portions of PM’s Services.
“Technology,” “Application Software” or “Application Services” (collectively “Services”) refers to any services, product, equipment, hardware, web site services, the Licensed Program, or other software, instruction manuals, or any other item provided by PM to User. Picture Marketing Services are commonly known by a variety of names including Picture Marketing®, Picture Marketing In-a-Box™, FotoZap®, PhotoZap®, Photo Sharing for Brands™, and other names.
“Authorized Users” means individuals who are authorized by You to use the Services, or for whom subscriptions to the Services have been ordered, or who have been supplied user identifications and passwords by You (or by Us at Your request), or have secured their own User Name and Password through an online registration. Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
“Unauthorized Users” means individuals who have not paid money to use the PM Platform, but are using it for commercial or marketing gain. This includes Users who have previously paid for use but have exceeded their license parameters, both through excessive time, or excessive users or usage.
“PM,”, “Us” or “Our” means the company (Picture Marketing, Inc.), or any of its affiliates or subsidiaries.
“You”, “Your” or “Licensee” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Media Gatherers” means anyone using the Services for payment, or in Free or Demo Mode, to gather photos, videos, data or other media. Media Gatherers are typically a brand, agency, or business entity who uses the Services for the viewing benefit of Media Viewers. Media Gatherers typically download one of the PM Apps to a device, and login to use those apps in the process of gathering media or data. “Media Viewers” means anyone whose photo or video is captured with the Services. Media viewers typically click on a link to view media, or are otherwise sent or served a view of their media through a variety of available channels. Media Gatherers typically send media or send links to Media Viewers. Media Viewers typically are the receivers of media. Media Viewer usage is covered by an accompanying Privacy Policy which can be found at http://picturemarketing.com/privacy.
“Captured Data” means any data, including media, photos, videos, survey data, email addresses, SMS numbers, or any other digital data, in any form, that is captured by or on behalf of a Purchaser via the Services.
GDPR AND OTHER PRIVACY LAWS
Some of the new privacy laws surrounding the use and permissions of consumer data (such as those put into effect in the EU as of May 25th 2018) differentiate between data ‘Processors” and data “Controllers.” Data controllers are individuals or entities that determine the purpose and means of the processing of personal data. Controllers must be compliant with the local laws governing data and they must ensure that any third-parties to which they transmit or otherwise make available personal data are also compliant. Data processors are third-parties who process personal data on behalf of data controllers, and must in particular implement appropriate technical and organizational security measures that meet the requirements of the GDPR.
In this system under the applicability of the GDPR, PM is a data processor, and PM users (e.g. event professionals) are data controllers.
As a data processor, we’ve taken various initiatives to ensure PM’s compliance with current National and International Laws (to the extent applicable) with respect to the scope of services as stated in our Privacy Policy.
Here is what we do as a Processor:
- Take and implement all appropriate technical and organizational security measures to permanently protect the confidentiality, integrity, availability and capacity of personal data and respective processing systems and services
- Respond in a timely manner to requests to access, correct, return, or delete personal data
- Report security breaches impacting personal data in accordance with legally required timeframes
- Demonstrate compliance with the current State, National and International privacy laws.
- Provide tools to allow our users to be compliant such as opt-out pathways.
Here is what you need to do as a Controller:
In order for us as data processors to provide (to the extent applicable) compliance referred to above, we operate under the assumption that you, as a data controller, agree to do the following:
- Obtain personal data of Guests with valid permission, as set forth by the applicable laws, including explicit and informed consent
- Act in compliance with the current laws, rules and any other applicable data protection or information privacy laws and regulations
- Agree to have PM act as data processor on your (the data controller’s) behalf
- Clearly display our Privacy Link on all Photo Display Pages or other web pages associated with our services, or purchase a custom footer from us for your web pages and clearly display your own Privacy Link, and ensure that your link fulfills all laws, restrictions, stipulations, and requirements for your area or any area where your captured photos will be displayed.
Following these steps allows us to operate together under compliance with the current laws (to the extent applicable), and provide you the same high standard of service you have come to expect.
LICENSE GRANT TO USE SERVICES
Subject to the terms and conditions of this Agreement and any accompanying Order Form, Picture Marketing agrees to make the Services available by You solely for the purpose of capturing photos, videos, and other types of media and data, for upload to the PM Platform (the “Permissible Use”). PM hereby grants to User a limited, nonexclusive, nontransferable license to use PM Patents, the Licensed Program and the Licensed Equipment, solely for Permissible Use, and subject to purchase and payment of User License(s) by User to PM, at the price and terms outlined in the signed Order Form or during the online signup process. No refunds are issued on licenses, once they are paid. PM software is Licensed, not sold. PM maintains ownership of the title and all copyrights of the software and any accompanying documentation including any intellectual property rights therein.
WARRANTY
PM shall use all commercially reasonable efforts to ensure that the Services are accurate and up to date. We make no express or implied warranty or representation that the Services and related information are accurate or up to date or that they are suitable for any particular purpose, and will not be liable for errors or omissions contained therein or their consequences. PM does not warrant that its web-based Services or on-site Services will be uninterrupted or error free. The Apps are tested for functionality on all current operating systems on a variety of devices. Favored devices are listed on our support site. It is suggested that clients who supply their own devices use the latest models as the photo quality is vastly improved, and older devices (3 years or more) may not display all Fotozap functions properly.
Except as may be otherwise provided herein, the Services and any information provided by PM are provided “as is” and “as available.” User assumes all risk for using, and for any results it obtains, or liability it incurs, by, or as a result of, using any of the Services, or from using any information User obtains from using the Services, or for failing to access any service on any occasion. PM does not guarantee the prevention of the loss or alteration of, or improper access to, Users information or computer system. PM is not responsible for transmission errors, corruption of data during transmission, lack of available onsite of connectivity, slow data transmission speeds due to large crowds at events, or the security of User’s information carried over any telecommunications or data communications facilities.
Except as provided herein, it shall be the responsibility of User to ensure that its hardware and system software (including but not limited to any interfaces) used, are compatible with the Product, Service and Technology provided. PM will not be responsible for any expenditure that may be incurred by User in modifying its hardware and system software to enable it to receive the Service. Unless otherwise agreed in writing, User will use all reasonable efforts to keep the Technology in a secure environment, including protection from harsh elements, and prevent unauthorized access to it. PM will not be responsible for any replacement of any data that is lost or damaged, or any down time, as a result of failure by User to provide adequate security, including protection from elements such as heat, snow, rain and wind.
LIMITATION OF LIABILITY
In no event will PM, its officers, shareholders, directors, employees, subsidiaries, consultants, contractors, parents, agents, affiliates, Users, or clients be liable for any damages resulting from: costs of procurement of substitute products or services, loss of revenue, loss of profits, loss of contracts, loss of data or software programs or loss of use of data or software programs, loss of anticipated savings, interruption in the use or availability of data, stoppage to other work, loss of goodwill, or any third party claims; or any losses or damages that are indirect or secondary consequences of any act or omission of the other party, its employees, representatives or sub-contractors, whether such losses or damages were reasonably foreseeable or actually foreseen; or any special, indirect, consequential, punitive, exemplary or incidental damages; or any claims against User by any other party; whether direct or indirect even if PM has been advised of the possibility of that loss or damage arising, however caused and on any theory of liability, arising from or related to the Agreement in any way. This limitation shall apply even if PM has been advised of the possibility of such damages, and notwithstanding any failure of essential purpose of any limited remedy herein provided. User agrees that PM’s liability, regardless of the form of action, shall not exceed the price paid, if any, by User for any Services provided under the Agreement.
INDEMNIFICATION
Each party will indemnify, defend, and hold harmless the other party and its officers, directors, managers, partners, members, employees, and agents (collectively “Indemnified Parties”) from and against any and all costs, liabilities, losses and expenses, (including, but not limited to, reasonable attorneys’ fees) (collectively “Losses”) resulting from any claim, suit, action or proceeding (each an “Action”) brought by any third party against an Indemnified Party alleging (i) the other party’s (“Indemnifying Party”): (1) infringement or misappropriation of any intellectual property right, including but not limited to copyright, trade secret and trademark rights. The Indemnifying Party’s indemnification obligation hereunder shall be subject to: (a) receiving prompt written notice of the existence of any Action; (b) being able to, at its option, control the defense of such Action; (c) permitting the Indemnified Party to participate in the defense of any Action; and (d) receiving full cooperation of the Indemnified Party in the defense thereof. User further agrees to take all necessary precautions to prevent injury to any persons (including employees of PM) or damage to property (including PM property) during the term of this Agreement and shall indemnify and hold harmless PM and its officers, agents, directors, and employees against any claim, loss, judgment, expense (including reasonable attorneys’ and expert witnesses’ fees and costs) and injury to person or property (including death) resulting in any way from any act, omission or negligence on the part of User in the performance or failure to perform the scope of work under this Agreement, excepting only those losses which are due solely and directly to PM negligence. Should PM permit User to use any of PM’s equipment, tools or facilities during the term of this Agreement, such permission will be gratuitous and User shall indemnify and hold harmless PM and its officers, agents, directors, and employees from and against any claim, loss, judgment, expense (including reasonable attorneys’ and expert witnesses’ fees and costs) and injury to person or property (including death) arising out of the use of any such equipment, tools, or facilities, excepting only those losses which are caused solely by PM or directly related to PM’s sole negligence.
PROPRIETARY RIGHTS
Exclusive of Licensee Information, Picture Marketing will retain all right, title, and interest (including copyright and other intellectual property rights, or informational rights) in and to the Application Services, the Application Software, the Picture Marketing Information, and all legally protectable elements or derivative works thereof. No right, title, or interest in any of the Application Services, the Application Software, or any Picture Marketing Information will be deemed to be transferred or assigned to Licensee or any Customer by virtue of this Agreement or Licensee’s use of or access to the Application Services. Picture Marketing may place copyright and/or proprietary notices, including hypertext links, within the Application Services indicating Picture Marketing’s proprietary interest therein. Licensee may not alter or remove such notices without Picture Marketing’s written permission. PM shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services (“Feedback”). PM acknowledges that all Feedback is provided “As-Is” and without warranty of any kind, and agrees that any use of Feedback is at PM’s sole risk. Regarding Licensee’s Proprietary Rights, Licensee will retain all right, title and interest (including copyright and other intellectual property rights, or informational rights) in the Licensee Information. No right, title, or interest in or to any of the Licensee Information will be deemed to be transferred or assigned to Picture Marketing by virtue of this Agreement.
STORAGE, OWNERSHIP, DELETION AND USAGE RIGHTS CONCERNING CAPTURED DATA
PM makes no claim of ownership for any Captured Data stored in its system. Unless memorialized by separate contractual agreement, PM reserves the right to use Captured Data for consumer re-marketing purposes. Data may be shared with Clients, Users, or their assignee, or their associates whom may possess their confidential User Name and Passwords, allowing administrative access. Captured Data is stored on PM-hosted servers housed at secure locations (such as Amazon Web Services). Facilities used for storage are subject to change without notice. Access to photos and data is available through PM’s password-protected Admin Site. Images are guaranteed to remain on the system at least thirty (30) days after the User’s license has expired. The User and its assignees may request removal of images and data at any time. Additionally, consumers may also individually request removal of their images and data in keeping with the privacy terms posted on our public-facing policy, currently displayed at http://picturemarketing.com/privacy (see “Requesting Removal of your Photo” at that site). Upon receipt of any form of request to remove a guest’s image or data, and upon adequate information to identify that media and data, we reserve the right remove the images/data without the obligation of consulting with the Client customer that captured the images. We provide the ability for each Client to remove individual photos/data upon requests of their guests at the click of a button on the administrative site. Such removal will not require our approval or guidance. We will also honor any request to remove all photos from a Campaign or Promotion (a “Mass Removal” request). A Mass Removal request can be put in place via email correspondence, phone, or by starting the process by filling out the form at: https://picturemarketing.com/data-request/
STORAGE, OWNERSHIP AND USAGE RIGHTS FOR DATA POSTED TO SOCIAL NETWORKS
Our system, by default, displays a semi-private photo. However, when photos, videos and comments get posted to social sites such as Facebook, or displayed in any type of public gallery, we are no longer in control of the data or the media. We make no claim about restricting control, use, or ownership of any data or media posted outside of our own system, or data collected through unauthorized or unpaid use of our system.
PASSWORDS
You are responsible for all use of Your account and maintaining the confidentiality of all passwords and information provided by Picture Marketing. Sharing of passwords, account numbers or information among Third Parties is only permissible with Third Parties that agree to these terms of Services.
EQUIPMENT RETURN OR REPLACEMENT
As applicable, User agrees to return the Licensed Equipment to PM within thirty (30) days of the end of the contracted use period. If User elects to continue to keep the equipment in their possession beyond 30 days from the end of their contracted use period, then User agrees to begin paying a monthly usage fee of $500 per device, such fees to be billed by PM. Such continued usage or possession will be subject to all the same terms and conditions as the original usage. Should the Licensed Equipment be lost or stolen, User agrees to pay the Replacement Price for the lost or stolen equipment. User is also responsible for any damage to the Licensed Equipment beyond normal wear and tear. In the event of such damage, User agrees to pay for any necessary repairs, or if repair is not feasible, then the User agrees to pay the Replacement Price. The Replacement Price is the current PM list price of an identical or equivalent backup device, or a lesser price, at PM’s option.
AGREEMENT NOT TO REVERSE ENGINEER OR CONNECT TO OTHER SYSTEMS
User shall not attempt to reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code of any software used in conjunction with the Services, including system peripherals, or camera firmware. User agrees not to redirect Captured Data to any other platform outside of PM without the express written consent of PM. The User agrees that any breach of this clause will cause substantial and irreparable damages, and, therefore, in the event of any such breach, in addition to other remedies which may be available, Picture Marketing shall have the right to seek specific performance and other injunctive and equitable relief and to have all costs and expenses, including reasonable attorney’s fees incurred in connection therewith, paid by the User. The look and feel of the Application Software and Application Services is copyrighted©. Picture Marketing, Inc. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS/JavaScript/Images or visual design elements without express written permission from Picture Marketing, Inc.
MUTUAL NON-DISCLOSURE AGREEMENT
Each party (“Receiving Party”) agrees to keep confidential and not disclose or use except in performance of its obligations under this Agreement, confidential or proprietary information related to the other party’s (“Disclosing Party”) technology or business that the Receiving Party learns in connection with this Agreement and any other information received from the other that reasonably would be understood to be confidential or proprietary (all of the foregoing, “Confidential Information”). Each party shall use reasonable precautions to protect the other’s Confidential Information. “Confidential Information” shall not include information the Receiving Party can document (a) is in or (through no improper action or inaction by the Receiving Party or any affiliate, agent or employee) enters the public domain (and is readily available without substantial effort), (b) was rightfully in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it by another person without restriction, or (d) is independently developed by employees, agents or representatives of the receiving party as a result of its own efforts, and without the knowledge or benefit of the Confidential Information received from the Disclosing Party. Either party may disclose any Confidential Information as required to satisfy any law, regulation, governmental request, or court order.
RELATIONSHIP OF THE PARTIES AS IT PERTAINS TO PICTURE MARKETING & ANY CLIENT USER
The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement, and is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. Neither party nor its agents or employees are the representatives of the other party for any purpose and neither party has the power or authority as agent, employee or any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever.
FREE TRIAL
If You register on any of Our websites for a free trial or for “Demo Use,” PM will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Services or (b) the start date of any Purchased Services ordered by You, or (c) you begin to use the Services for any marketing or financial gain. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. PM reserves the right to end any trial period, free use, or demo use at any time, with or without notice, for any reason, or for no reason at all.
PAYMENT FOR SERVICES
User agrees to pay per the terms stipulated on the Order Form. In the event payment is not received by PM on terms indicated, User agrees to pay an interest in the amount of one and one half percent (1.5%) per month, or the maximum allowed by law, whichever is lower, on any unpaid balance, beginning 60 days after the initial due date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. If You are delinquent in your payments, Picture Marketing may, at its sole discretion, (i) terminate this Agreement, (ii) in whole or in part suspend or block Your access to the Application Services until payment in full has been paid, or (iii) require other assurances to secure Your payment obligations hereunder.
PAYMENT FOR ADDITIONAL USE BEYOND THE CONTRACTED SERVICES
If User continues to access User License(s) and upload photos beyond the scope or time of the original signed agreement, or adds additional Unauthorized Users without authorization and payment, then User agrees to pay for continued use, upon demand by PM, at the current standard rates charged by PM, or at $500 per device, per month, whichever is less. It is the responsibility of the Client to monitor FotoZap usage on their own account. Picture Marketing assumes no responsibility for any standard or extraneous charges, on any clients account, incurred for any reason, whether or not associated with the use of any of our Apps. Charges incurred through any extraneous use, of any nature, such as phone usage, web surfing, App downloads or media charges not authorized and agreed to by further written agreement with PM, will be the sole responsibility of the User.
LIMITED NORTH AMERICAN SMS USAGE AND CHARGES FOR INTERNATIONAL SMS USAGE
The FotoZap platform allows SMS messages to be sent through any of our various software products, and also from the Photo Display Web Page viewed from any browser. In the USA and CANADA, 10,000 in-app SMS message legs are included at no additional charge when you purchase an annual license. For domestic monthly users, and for International accounts, clients are required to secure their own Twilio accounts, so that all SMS charges incurred through their system are charges to their own accounts. PM reserves the right to discontinue SMS offerings at any time, based on existing rates or changes. As is usual with texting, the recipient’s account may be subject to standard carrier rates and charges, depending upon their particular carrier’s plan.
TAXES
Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases of the Services. If PM has the legal obligation to pay Taxes for which You are responsible under this paragraph, you agree to pay those amounts, if invoiced.
HOW DATA AND PHOTOS ARE HANDLED UPON EXPIRATION OF CLIENT LICENSES
Upon expiration of your license period, we reserve the right to delete your account, all associated data, and accompanying photos within 30 days. We also reserve the right to send out a notification to your recipients inviting them to download their photo or purchase a print, prior to deletion from the database.
GENERAL PROVISIONS
This Agreement is governed by and interpreted under the laws of the State of California without reference to its conflicts of laws rules. To the extent allowed by law, any dispute arising from or related to the Agreement which leads to a proceeding to resolve such dispute will be resolved by binding arbitration pursuant to then current commercial arbitration rules of the American Arbitration Association in the State of California before a sole arbitrator. Neither Party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other Party. Nothing prevents assignment of this Agreement through the disposition of substantially all the assets of either party by way of sale, merger, consolidation, or acquisition. No modification to this Agreement, nor any waiver of any rights, shall be effective unless assented to in writing by the party to be charged and the waiver of any breach or default shall not constitute a waiver of any other right hereunder or any subsequent breach or default. Any required notices hereunder shall be given in writing at the address of each party set forth in the Agreement. Rights to display branded media shall be governed by the current PM Privacy Policy, unless otherwise stipulated by PM or the User. In lieu of any written agreement stating otherwise, PM reserves the right to create and display a case study of the results of any activation. PM shall maintain at PM’s own expense Comprehensive General Liability Insurance that shall provide coverage for liabilities or claims for damages resulting solely from services performed or undertaken by PM hereunder. Paragraph headings herein are for purposes of identification only and are not to be used in interpretation.
PRIVACY PROVISIONS
We have made every reasonable effort to interpret and comply with all current privacy laws including the 2020 California Laws as well as CalOPPA and Civil Code Section 1798.82, the CAN-SPAM act, GDPR, the Fair Information Practices, the new Swiss Laws and more. This EULA is accompanied by our Privacy Policy, which is clearly linked on our web pages and can be viewed online at http://PictureMarketing.com/Privacy. You or any Guest can request removal of photos and data by filling out the form on the following link: http://PictureMarketing.com/data-request/
This Document was last updated on August 1, 2021.