Terms of Use
Dan Smarg Photography
Updated January 29, 2022
PLEASE READ THESE TERMS AND CONDITIONS OF USE ("TERMS OF USE") CAREFULLY. BY DOWNLOADING, ACCESSING OR USING THIS MOBILE APPLICATION, WEB SITE, PURCHASING PHOTOS, PRINT OR SUBSCRIPTION SERVICES, OR CLICKING THAT YOU AGREE WHEN PROMPTED BY DAN SMARG PHOTOGRAPHY, YOU AGREE TO BE BOUND BY THESE TERMS OF USE.
Welcome to the Dan Smarg Photography Dan Smarg Photography™ website and mobile application, Dan Smarg Photography, 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.
Dan Smarg Photography, its website service, Dan Smarg Photography™ and its on-demand photography mobile application, Dan Smarg Photography, (collectively as the "Dan Smarg Photography,” “Dan Smarg Photography.com,” Webite, “We”, “Us”, “Our” "Content Provider" etc.) provides our users with online and mobile tools designed to facilitate the creation and analysis of professional photography, commercial marketing products and to provide brand engagement analytics for Dan Smarg Photography. These Terms of Use protect the legal interests of Dan Smarg Photography, our users and our third party vendors (collectively as “Third Party Company, Companies, or Analytics Services).
The website, www.Dan Smarg Photography.com is the official website of Dan Smarg Photography photography services and is registered to, owned and operated by Dan Smarg Photography, its respective officers, managers, employees, agents, affiliates and contractors (collectively, "Dan Smarg Photography"). The Ecommerce Site is hosted by Squarespace, however Dan Smarg Photography is in no way affiliated with or a business partner of Squarespace. These Terms of Use apply to your access to and use of the Dan Smarg Photography website, the Services (as defined below) and any other online services provided by Dan Smarg Photography (the "Services"). These Terms of Use also apply to your use of the Services to purchase photographic prints, photo packages, analytics packages, custom quotes, verbal, written and non-verbal advice or information gathered or implied by the website, it’s affiliates or subcontractors; other related merchandise and products ("Products") through Dan Smarg Photography's approved third party vendors and retailers ("Dan Smarg Photography Vendors") etc.
Your use of the Website, any Mobile Application, Web Services and your purchase of Products is expressly conditioned upon your agreement to these Terms of Use. If you do not consent to these Terms of Use, you are not permitted to use Dan Smarg Photography or any Dan Smarg Photography Services. If you access the Services on behalf of a company or other entity, you warrant that you are an authorized representative of such company or entity with the right to bind such company or entity to these Terms of Use.
The Services are not targeted towards, nor intended for use by, anyone under the age of 13. If you are between the ages of 13 and 18, you may use the Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Use. These Terms of Use contain provisions that govern how claims that you and Dan Smarg Photography have against each other are resolved.
These Terms of Use also contain provisions requiring you to resolve certain disputes or claims relating to your use of the Services by binding arbitration, rather than in court. If you do not consent to such terms, you are not permitted to use Dan Smarg Photography Smart Photos™ or Dan Smarg Photography Services.
Dan Smarg Photography reserves the right to change, modify, revise or otherwise amend any provision of these Terms of Use, and any other terms, policies or guidelines governing your use of the Services, at any time at its sole discretion by providing notice that the Terms of Use have been modified. Such notice may be provided by sending an email, or by posting a notice on the Site, or by posting the revised Terms of Use on the Site and revising the date at the top of these Terms of Use or by such other form of notice as determined by Dan Smarg Photography. Your continued use of the Services, or your purchase of any Products or the Services following the posting of the revised Terms of Use or other notice will constitute your acceptance of such changes or modifications. Otherwise, any changes or modifications will be effective within thirty (30) days of the posting of the revisions on the Site unless you notify Dan Smarg Photography within such thirty (30) days that you do not agree to the changes and stop using the Services. Therefore, you should review these Terms of Use whenever you access the Services and at least every thirty (30) days to make sure that you understand the terms and conditions that will apply to your use of the Services. Our Dan Smarg Photography & Dan Smarg Photography™ Privacy Policy provides information on how Dan Smarg Photography collects, uses and discloses information from all users of the Services and/or information obtained through your purchase of Products through the Services.
DISCLAIMER
We’re satisfied our Privacy Policy and Terms of Use outlines our use of and reasons for gathering all information about you or your business. However, if you believe we omitted or did not fully clarify specific aspects of our Privacy Policy, Terms of Use or the terms of our image licensing agreements, please let us know and we will be happy to find a solution that works for you or your business as soon as possible. Contact: Http://www.dansmargphotography.com/contact
A. GENERAL TERMS
1. Additional Policies: These Terms of Use and the following additional Dan Smarg Photography terms and policies (as applicable) together constitute a binding agreement between you and Dan Smarg Photography. All such additional policies are incorporated into these Terms of Use as applicable and collectively govern your use of the Services and/or purchase of Products.
Subscription Services Terms: Dan Smarg Photography'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 Dan Smarg Photography Subscription Services, or Third-Party Services we deem integral and necessary to provide you with premium analytics packages and products, you agree hold Dan Smarg Photography 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 Dan Smarg Photography 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, Dan Smarg Photography, 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, Dan Smarg Photography, agreeing to the terms and conditions herein, or signing Dan Smarg Photography’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 Dan Smarg Photography Model Release. In consideration of being provided with digital copies of the Images captured via Dan Smarg Photography, or in any Photo Shoot related to Dan Smarg Photography 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 Dan Smarg Photography or its representatives (Photographers), 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 Dan Smarg Photography 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 Dan Smarg Photography in connection with the Services are the exclusive property of Dan Smarg Photography. Dan Smarg Photography reserves the right to use all Work Products for its own commercial purposes including advertising on Social Media, its websites and any print materials. Dan Smarg Photography 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 Dan Smarg Photography 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, Dan Smarg Photography 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, Dan Smarg Photography 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 http://www.dansmargphotography.com/contact. Dan Smarg Photography 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, Dan Smarg Photography 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 Dan Smarg Photography, it’s affiliates, subcontractors, licensees and assignees. None shall be deemed responsible for any violation of Third Party Agreements not previously authorized directly by Dan Smarg Photography. The scope of the license rights granted by Dan Smarg Photography will vary depending on the type of license that the new Content Owner designates to such Media. Dan Smarg Photography 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, Dan Smarg Photography 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 Dan Smarg Photography photo shoot:
What you may do:
Dan Smarg Photography (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 Dan Smarg Photography.
• 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 Dan Smarg Photography 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, Dan Smarg Photography 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 Dan Smarg Photography before Customer may use any images for commercial purposes. Any commercial-use of images created by Dan Smarg Photography 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, Dan Smarg Photography 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: http://www.dansmargphotography.com/contact
Copyright Policy: Dan Smarg Photography respects the intellectual property rights of others and expects its users to do the same. To that end, all Dan Smarg Photography users are subject to the Copyright Policy set forth in Section E below.
Dan Smarg Photography Application: Dan Smarg Photography's mobile application, Dan Smarg Photography™ will be available for download by users via authorized application stores and other platforms (e.g., the Apple App Store). If you access and use the Services via the Dan Smarg Photography Dan Smarg Photography™ mobile application or on a mobile phone, tablet or similar mobile device, you are bound by these Terms of Use.
2. Mobile License
The Dan Smarg Photography Services and all images, software, platforms, tools, graphics, data, text, code, the Dan Smarg Photography Marks (as defined below) and other content and materials available on the Services (excluding User Content) and the selection and arrangement thereof (collectively, the "Dan Smarg Photography Materials") are the property of Dan Smarg Photography or its third party licensors and are protected by United States and international intellectual property laws.Dan Smarg Photography hereby grants you a limited, non-transferable, sub-licensable, revocable license to access and use the Dan Smarg Photography Materials solely in accordance with these Terms of Use. Except for the limited licenses granted hereunder, Dan Smarg Photography reserves all rights not expressly granted and no such additional rights may be implied.
You acknowledge that (i) all right, title and interest in and to the Dan Smarg Photography Materials, including all patents, copyrights, trade secrets, trademarks and other proprietary rights embodied therein or associated therewith, are and will remain with Dan Smarg Photography or its third party licensors; (ii) no right or interest in the Dan Smarg Photography Materials is conveyed other than the limited licenses granted herein; (iii) the Dan Smarg Photography Materials are protected by copyright and other intellectual property laws; and (iv) Dan Smarg Photography asserts that the Dan Smarg Photography Materials embody valuable confidential and secret information of Dan Smarg Photography or its licensors, the development of which required the expenditure of considerable time and money.
3. Dan Smarg Photography TradeMarks: You acknowledge that "Dan Smarg Photography", the Dan Smarg Photography and Dan Smarg Photography™ / Dan Smarg Photography 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 Dan Smarg Photography contained in the Services are trademarks of Dan Smarg Photography (collectively, the "Dan Smarg Photography Marks") and may not be copied, imitated or used without the prior written permission of Dan Smarg Photography. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Services are the property of their respective owners.
Dan Smarg Photography may provide users with tools to download the Dan Smarg Photography Marks via the Services. If you download or otherwise obtain the Dan Smarg Photography Marks using such tools, Dan Smarg Photography grants you a limited right to (i) use the Dan Smarg Photography Marks for the sole purpose of referencing the Services and (ii) to use only those Dan Smarg Photography Marks that are made available to you by Dan Smarg Photography through such tools. Your use of any Dan Smarg Photography Marks must be consistent with the size, dimensions, color and other characteristics of the Dan Smarg Photography Marks and consistent with any other policies concerning the Dan Smarg Photography 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 Dan Smarg Photography Marks, (ii) use the Dan Smarg Photography Marks in any manner that suggests Dan Smarg Photography sponsors or endorses a product, service, promotion, contest, or (iii) use the Dan Smarg Photography Marks for any other purpose deemed by Dan Smarg Photography to be inappropriate. Dan Smarg Photography has the right to revoke your right to use the Dan Smarg Photography Marks at any time at our sole discretion.
4. Restrictions:
You agree that you will not (i) modify or alter the Dan Smarg Photography Materials; (ii) create derivative works of the Dan Smarg Photography Materials; (iii) decompile, disassemble, decode or reverse engineer the Dan Smarg Photography Materials, translate the Dan Smarg Photography Materials or otherwise attempt to learn the source code, structure, algorithms or internal ideas underlying the Dan Smarg Photography Materials or reduce the Dan Smarg Photography 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 Dan Smarg Photography Materials.Except as otherwise expressly permitted herein, you may not use the Services or the Dan Smarg Photography Materials to engage in any of the following prohibited activities:
The collection, copying or distribution of any portion of the Dan Smarg Photography Materials; any resale, commercial use, commercial exploitation, distribution, public performance or public display of the Services or the Dan Smarg Photography Materials; modifying, “white-labeling” or otherwise making any derivative uses of the Services or the Dan Smarg Photography Materials; scraping or otherwise using any data mining, robots or similar data gathering or extraction methods on or in connection with the Services; with the exception of Media made available by users for download, the downloading of any portion of the Dan Smarg Photography Materials or any information contained therein; or any use of the Services or the Dan Smarg Photography Materials other than for their intended purposes.Any use of the Services or of any Dan Smarg Photography Materials other than as specifically authorized herein, without the express prior written permission of Dan Smarg Photography, the applicable Dan Smarg Photography user or the Content Owner, is strictly prohibited. Any such unauthorized use will result in the immediate termination of your rights under these Terms of Use and will constitute a breach of the license granted herein.
5. Hyperlinks: You may create a text hyperlink to the Site, provided such link does not portray Dan Smarg Photography or any of its Products or Services in a false, misleading, derogatory or otherwise defamatory manner. This limited right may be revoked by Dan Smarg Photography at any time. You may not frame the Site or utilize framing techniques to enclose the Site, Dan Smarg Photography Materials, Dan Smarg Photography Marks or other proprietary information without Dan Smarg Photography'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. Dan Smarg Photography 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. Dan Smarg Photography 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 Dan Smarg Photography 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 Dan Smarg Photography to provide the Services, including to display the User Content on the Services, to facilitate (at the Content Owner's direction) the license of Photos, or to process the sale of Products through the Services.
You represent and warrant that (i) you own or otherwise control all of the rights to the User Content that you post or transmit, or you otherwise have the right to post, use, display, distribute and reproduce such User Content and to grant the rights granted herein; (ii) the User Content you supply is accurate and not misleading; and (iii) the use and posting of the User Content you supply does not violate these Terms of Use and will not violate any rights of or cause injury to any person or entity.
7. Acceptable Use Disclaimer
You are solely responsible for the User Content that you post or transmit using the Services and you agree not to post, transmit or otherwise publish through the Services any of the following:
User Content that is unlawful, defamatory, obscene, pornographic, indecent, lewd, sexually suggestive, hateful, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable or harmful, including without limitation:
Photos, Videos or other User Content containing nudity that would be unacceptable in a public museum where minors visit; User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, endanger national security, or that would otherwise create liability or violate any local, state, national or international law; User Content that may infringe or violate any patent, trademark, trade secret, copyright or other intellectual or other proprietary right of any party; User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity; unsolicited promotions, political campaigning, advertising or solicitations; private information of any third party, including, without limitation: addresses, phone numbers, email addresses, social security numbers and credit card numbers; viruses, corrupted data or other harmful, disruptive or destructive files; and User Content that, in the sole judgment of Dan Smarg Photography, is objectionable, harmful or which restricts or inhibits any other person from using or enjoying the Services, or which may expose Dan Smarg Photography or its users to any harm or liability of any nature.
Although we prohibit certain activities in these Terms of Use, Dan Smarg Photography does not make any representation or warranty that the User Content you may encounter through your use of the Services complies with these acceptable use provisions or the Terms of Use. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. These Terms of Use do not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by these acceptable use provisions.
Dan Smarg Photography reserves the right (but is not obligated) to (i) review or screen any User Content submitted to the Site or otherwise submitted through the Services; (ii) edit any User Content posted on the Services; and/or (iii) remove any User Content from the Services for any reason, at any time, without prior notice, at our sole discretion. Dan Smarg Photography will have no liability or responsibility to users of the Dan Smarg Photography Services or any other person or entity for performance or nonperformance of such activities. Dan Smarg Photography's enforcement of the acceptable use provisions set forth in these Terms of Use with respect to User Content in some instances does not constitute a waiver of our right to enforce such provisions in other instances involving similar User Content.
8. Your Account:
Certain activities on the Services require you to register and create an account. In order to create an account, you must be 13 years of age or older. By registering for an account, you represent and warrant that you are at least 13 years of age and that all information you provide in the registration form ("Registration Data") is complete and accurate. Dan Smarg Photography reserves the right to refuse access to the Services to anyone at any time, with or without cause at its sole discretion. You agree to keep your registered email addresses and other Registration Data current and complete, as Dan Smarg Photography may send important notices about your account from time to time. By registering for an account, you consent to receive communications from Dan Smarg Photography about the Services by email and/or system messages consistent with the terms of our Privacy Policy.
9. Account Security:
You are solely responsible for maintaining the confidentiality of the 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 Dan Smarg Photography 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. Dan Smarg Photography 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. Dan Smarg Photography 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 Dan Smarg Photography 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 Dan Smarg Photography.
10. Third Party Services:
Dan Smarg Photography may make third party content and services available on or through the Services ("Third Party Services") solely as a convenience to its users (for example, links to third party websites, software and other services). When you leave the Dan Smarg Photography Services, you should be aware that these Terms of Use and all other Dan Smarg Photography policies no longer govern your use of such websites and services or any content contained thereon.
Dan Smarg Photography does not imply affiliation, approval, or control of any Third Party Services by making such Third Party Services available via the Dan Smarg Photography Services. Where such Third Party Services may exist or be used for photo creation, analytics purposes or otherwise, Dan Smarg Photography 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 Dan Smarg Photography users, Dan Smarg Photography Vendors or other third party service providers.
Your business dealings or interactions with any third parties, including the Dan Smarg Photography subcontractors, users or Dan Smarg Photography Vendors, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such Third Parties. Dan Smarg Photography does not endorse, approve, or control any such products, services, advertising or promotions posted to the Services by its users or the Dan Smarg Photography Vendors. Dan Smarg Photography is not responsible or liable for any loss or damage of any kind incurred as the result of your direct dealings with Dan Smarg Photography Users, Subcontractors, Third Party Companies or Affiliates or a Dan Smarg Photography 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 DAN SMARG PHOTOGRAPHY 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, DAN SMARG PHOTOGRAPHY 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 DAN SMARG PHOTOGRAPHY MATERIALS, AND THE PRODUCTS. DAN SMARG PHOTOGRAPHY DOES NOT REPRESENT OR WARRANT THAT THE DAN SMARG PHOTOGRAPHY MATERIALS OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SERVICES, ITS SERVERS OR EMAIL SENT FROM DAN SMARG PHOTOGRAPHY OR THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. DAN SMARG PHOTOGRAPHY IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT, PHOTOS OR VIDEOS. DAN SMARG PHOTOGRAPHY 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 DAN SMARG PHOTOGRAPHY 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 DAN SMARG PHOTOGRAPHY MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, INCLUDING ANY DAMAGES CAUSED BY OR RESULTING FROM YOUR RELIANCE ON ANY INFORMATION OBTAINED FROM DAN SMARG PHOTOGRAPHY, 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 DAN SMARG PHOTOGRAPHY'S RECORDS, PROGRAMS OR SERVICES.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF DAN SMARG PHOTOGRAPHY, 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 DAN SMARG PHOTOGRAPHY MATERIALS, EXCEED COMPENSATION YOU PAY, IF ANY, TO DAN SMARG PHOTOGRAPHY FOR ACCESS TO OR USE OF THE SITE, THIRD-PARTY SERVICES OR THE SERVICES OR FOR THE PURCHASE OF PRODUCTS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
14. Indemnity:
You agree to defend, indemnify and hold harmless Dan Smarg Photography and its officers, managers, employees, subcontractors, third-party company contractors, consultants, coders, programmers, assignees, affiliates and subsidiaries (collectively, the "Indemnified Parties"), and the Indemnified Parties' independent contractors, service providers and consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys' fees) arising out of or related to any User Content you post or otherwise transmit on or through the Services, your use of or inability to use the Services, the User Content, the Dan Smarg Photography Materials or the Products, or the licensing of your Media to third parties through the Services, including any actual or threatened suit, demand or claim made against any of the Indemnified Parties and/or their independent contractors, service providers, employees, directors or consultants, arising out of or relating to your User Content, your conduct, your violation of these Terms of Use or your violation of the rights of any Third Party.
15. Dispute Resolution:
Applicable Law:
Your use of the Services is subject to all applicable local, state, national and international laws and regulations. These Terms of Use and your use of the Services will be governed by and construed in accordance with the laws of the State of Florida applicable to agreements made and to be entirely performed within the State of Florida, without regard to its conflict of law provisions.
Agreement to Arbitrate & Waiver of Representative Actions: PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH DAN SMARG PHOTOGRAPHY 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 DAN SMARG PHOTOGRAPHY SERVICES.
You and Dan Smarg Photography agree to arbitrate any dispute arising from these Terms of Use or relating to the Services, Site or Dan Smarg Photography Materials. ARBITRATION PREVENTS YOU FROM SUEING IN COURT OR FROM HAVING A JURY TRIAL. You and Dan Smarg Photography agree: (i) to notify each other of any dispute within thirty (30) days of when it arises; (ii) to attempt informal resolution prior to any demand for arbitration; (iii) that any arbitration will occur in Collier County, Florida; and (iv) that arbitration will be conducted confidentially by a single arbitrator in accordance with the Rules of the American Arbitration Association ("AAA"), including the AAA's Supplementary Procedures for Consumer-Related Disputes (as applicable). The AAA's rules are available at www.adr.org. Other than class procedures and remedies described in these Terms of Use, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Notwithstanding the foregoing, you and Dan Smarg Photography are NOT required to arbitrate any dispute in which either party seeks equitable or other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents.
The arbitrator will not be bound by rulings in prior arbitrations involving different Dan Smarg Photography users but is bound by rulings in prior arbitrations involving the same Dan Smarg Photography 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 DAN SMARG PHOTOGRAPHY 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 DAN SMARG PHOTOGRAPHY 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 DAN SMARG PHOTOGRAPHY USERS.
Unless you and Dan Smarg Photography agree otherwise, in the event that a court decides that any part of this Section 15 is invalid or unenforceable, you agree that any claim or dispute that has arisen or may arise between you and Dan Smarg Photography must be resolved exclusively by a state or federal court located in Collier County, Florida. The remainder of the Terms of Use will continue to apply. You and Dan Smarg Photography agree to submit to the personal jurisdiction of the courts located within Collier County, Florida for the purpose of litigating all such claims or disputes.
16. Feedback:
We welcome feedback from our users regarding ideas and suggestions for improvements to the Site, Services and Products. Dan Smarg Photography will be entitled to use any such feedback without restriction, even if you designate such feedback as confidential. You hereby grant Dan Smarg Photography 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.
17. Assignment:
These Terms of Use are binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Notwithstanding the foregoing, you may not assign your rights under these Terms of Use without Dan Smarg Photography's prior written consent. Dan Smarg Photography will be permitted to assign its rights under these Terms of Use at its sole discretion.
18. International Users:
Dan Smarg Photography 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 Dan Smarg Photography 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.
19. Severability:
If any provision of these Terms of Use is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of these Terms of Use will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the parties' intent.
20. Survival:
The terms and conditions of these Terms of Use which by their nature are intended to survive termination or expiration of Services (including, but not limited to, Indemnification, Warranty Disclaimer, Dispute Resolution and the Limitation of Liability) will survive any expiration or termination of these Terms of Use.
21. Questions or Comments:
Dan Smarg Photography 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: Http://www.dansmargphotography.com/contact
22. Photographer ("Photographer") 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 Dan Smarg Photography or its Services. Dan Smarg Photography 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. Dan Smarg Photography retains twenty (20) percent of the face value of every on-demand or scheduled shoot via the Dan Smarg Photography. An additional percentage for transaction processing may be withheld pending Dan Smarg Photography's evolving agreements with third-party vendors or companies providing integral coding, scheduling and transactional services. Payments are subject to Dan Smarg Photography'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, Dan Smarg Photography 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. Dan Smarg Photography must direct flow of payments.
Master Marketplace Account. Dan Smarg Photography 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, Dan Smarg Photography will specify to Braintree the amount of the total transaction, the service fee Dan Smarg Photography wishes to charge (if applicable), and specify the funds go into the MMA. At disbursement Dan Smarg Photography will receive its fees and the Sub-Merchants will receive their portion of the payment at the specific rates Dan Smarg Photography determines. These payments, transaction fees and rates may vary and are subject to change at Dan Smarg Photography's sole discretion. In reasonable consideration, Dan Smarg Photography 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 Dan Smarg Photography and provide all Services regardless of payment, transaction fee or rates changes. As such, all changes are final until further notice. If Dan Smarg Photography elects not to hold the payment, Dan Smarg Photography can configure the funds to disburse as soon as they are available. Dan Smarg Photography understands that it and Sub-Merchant will receive funds at the same time.
Termination of Sub-Merchants. (a) Dan Smarg Photography may terminate a Sub-Merchant’s access to Dan Smarg Photography's Marketplace in accordance with its own terms and conditions. (b) Braintree may terminate a Sub-Merchant’s access to Dan Smarg Photography'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. Dan Smarg Photography will distribute these 1099-K tax forms to Sub-Merchants. Dan Smarg Photography 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. Dan Smarg Photography and Sub-Merchant will provide Sub- Merchant transaction activity reports as reasonably requested.
Commercial Entity Requirements. If Dan Smarg Photography 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. Dan Smarg Photography and Sub-Merchant acknowledges this requirement and will provide assistance as required or remove the Sub-Merchant from Dan Smarg Photography's Marketplace.
Liability. Dan Smarg Photography 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 Dan Smarg Photography and Braintree, and or a third party Customer for any and all such liability incurred by the foregoing party. Dan Smarg Photography 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. Dan Smarg Photography and Sub-Merchant assumes responsibility to comply with all applicable state-level Money Transmitter License rules and regulations.
23. Photographer & Customer Privacy:
All policies pertaining to personal security and privacy are clearly outlined in the Privacy Policy (www.Dan Smarg Photography.com/privacy-policy.html) To the best extent possible, Dan Smarg Photography seeks to secure all private personal information and does not share or disseminate any Customer or Photographer emails, account logins or personal information. Dan Smarg Photography nor it's founders, employees, or legal assigns shall be held liable for any "identity theft" or loss of personal information. Customers, Users and Photographers use the Dan Smarg Photography Services at their own risk.
At the time the a shoot is scheduled, the Photographer (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 Photographer may only use this information to contact the Customer as a means of providing Services that have been booked through authorized Dan Smarg Photography channels.The Photographer 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 Dan Smarg Photography headquarters via email: Http://www.dansmargphotography.com/contact
Similarly, when the Photographer is on location with the Customer, the Customer may obtain the Photographer's personal or private business contact information including emails, phone numbers and website addresses. If the experience using Dan Smarg Photography Services is positive, we ask that the Customer continue to use the channels we have set up via our mobile optimized website and mobile application(s) to book future Services. Doing so will ensure their privacy is protected and that all transactions that occur with Dan Smarg Photography's Photographers will be conducted via authorized and secure channels. Any business transaction conducted outside the booking features of the Dan Smarg Photography website or mobile application is not subject nor enforceable under our Terms of Use or Privacy Policy. Dan Smarg Photography shall not be held liable for any transactions or disputes that may arise outside its authorized Services or Communications protocols.
24. Automatic Opt-In For Email, SMS, Push Notifications and General Communications: Dan Smarg Photography endeavors to comply with all GDPR (General Data Protection Regulation) policies. This pertains specifically to email, SMS messaging, push notifications and general communications. By downloading, signing up for and using the web-based or mobile-app based services, you automatically agree to be contacted by Dan Smarg Photography (Dan Smarg Photography), its Photographer Photographers, Photographer Liaison Managers, and affiliates in order to facilitate the booking process and ensure your full satisfaction with these professional photography services. All email, SMS, push notification and general communication is designed to enhance your experience. It is an integral part of making sure you have the best experience possible. We appreciate your business and we look forward to servicing your business’ photography needs. Please note, by agreeing to these Terms of Use, this is the equivalent of your official “opt-in” to receiving these communications. We will send you confirmation emails and push notifications when you submit your Shoot Requests or Bids to the photographer marketplace. We will send you a confirmation email and push notifications when your Shoot Request is booked by a Photographer photographer. We will send you confirmation of Shoot Status updates as well as a Photo Gallery Link when your shoot is wrapped and when your photos are ready to be downloaded via SmugMug. We may also communicate with you during the booking, shooting or photo review process to ensure you are fully satisfied with the service you are receiving.
Through our Affiliate Partnerships, we also provide you with various promotions and discounts for Third-Party Vendors and Service Providers. By downloading, signing up for and using the web-based or mobile-app based services, you also automatically agree to receive email and push notifications alerting you to those promotions and discounts. Please note, by agreeing to these Terms of Use, this is the equivalent of your official “opt-in” to receiving these communications. You are not obligated to purchase or use any of those products or services. You also have the option of removing yourself from any email or push notification list by pressing “Unsubscribe” at the bottom of any email you receive or by turning the pop-up notifications feature off in your mobile application. If you need assistance unsubscribing or turning push notifications off, please email: http://www.dansmargphotography.com/contact
B. ADDITIONAL TERMS APPLICABLE TO PHOTO AND OR SUBSCRIPTION SERVICES ("SUBSCRIPTION SERVICES TERMS") You may use the Subscription Services only in accordance with these Subscription Services Terms (and the Terms of Use of which they are a part). In the event of any conflict between these Subscription Services Terms and the other provisions of the Terms of Use, these Subscription Services Terms will control.
1. Dan Smarg Photography 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 Dan Smarg Photography. (the "Subscription Plan").
If you wish to purchase a Subscription, we offer a free consultation and custom analytics quote. We will ask you to provide certain information in order to facilitate such purchase, including your credit card number, billing address and any related payment information as required by Dan Smarg Photography (collectively,"Payment Information"). Dan Smarg Photography may use a third party payment processor or Point-Of-Sale mobile “POS” device (e.g., Shopify, SmugMug, Amazon Payments or PayPal) to facilitate your payment of any Subscription Fees. Any Payment Information that you provide will be governed by the terms of our Privacy Policy. By submitting Payment Information via the Services, you warrant that you have the legal right to use any such credit card or other payment mechanism that you provide to facilitate the transaction. 1A.
FOTGENIE FOTOS ON THE FLY™:
Dan Smarg Photography Fotos On The Fly™ are the “on-demand” feature of www.Dan Smarg Photography.co Fotos On The Fly Services are available to users (i) who purchase the Fotos On The Fly Photo Packages (ii) who agree pay in full the fees ("Fotos On The Fly™” Package Fees") applicable to the level of package selected by such user.
If you wish to purchase a Fotos On The Fly™ photos package, we will ask you to provide certain information in order to facilitate such purchase, including your credit card number, billing address and any related payment information as required by Dan Smarg Photography (collectively,"Payment Information"). Dan Smarg Photography may use a third party payment processor or Point-Of-Sale mobile “POS” device (e.g., Shopify, SmugMug, Amazon Payments or PayPal) to facilitate your payment of any Subscription Fees. Any Payment Information that you provide will be governed by the terms of our Privacy Policy. By submitting Payment Information via the Services, you warrant that you have the legal right to use any such credit card or other payment mechanism that you provide to facilitate the transaction.
2. Free Trials:
When you first register for the Subscription Services, Dan Smarg Photography 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 Dan Smarg Photography at the time of your registration for such Free Trial. You do not need to provide Dan Smarg Photography 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 Dan Smarg Photography (or our applicable third party payment processor) with valid Payment Information. Upon Dan Smarg Photography's receipt of your Payment Information, you will be charged for the Subscription Fee applicable to your selected Subscription Plan. Dan Smarg Photography may offer you the ability to register for a Subscription directly without the need to participate in a Free Trial.
3. Subscription Plans:
Dan Smarg Photography 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 Dan Smarg Photography is available here. By purchasing a Subscription, (i) you agree to pay all applicable Subscription Fees and other charges in accordance with your selected Subscription Plan, pursuant to the renewal and termination provisions described below (including any applicable taxes, such as sales tax), and (ii) you agree that you are only entitled to the features and services applicable to the Subscription Plan that you select at the time you purchase a Subscription.
The Subscription Services are intended to be used by Dan Smarg Photography users for the distribution and sharing of Photos and/or Analytics, as permitted under the user's applicable Subscription Plan. Dan Smarg Photography, at its sole discretion, reserves the right to limit, suspend or terminate your use of the Subscription Services if Dan Smarg Photography determines that you have violated these Subscription Services Terms or the Terms of Use.
Each Subscription is personal to the individual Dan Smarg Photography user. You may not transfer or assign your Subscription to another individual, entity or Dan Smarg Photography user unless such transfer or assignment is expressly permitted by the terms of your Subscription Plan.
From time to time, Dan Smarg Photography may provide certain users with complimentary Subscriptions. Any user accessing the Services by using a free Subscription is bound by the Terms of Use and any applicable terms and conditions of these Subscription Services Terms (including Dan Smarg Photography's right to terminate or cancel such Subscriptions).
4. Subscription Term & Automatic Renewal:
Your Subscription is valid commencing on the date in which Dan Smarg Photography 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 DAN SMARG PHOTOGRAPHY 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: HTTP://WWW.DANSMARGPHOTOGRAPHY.COM/CONTACT 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 Dan Smarg Photography 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. Dan Smarg Photography will notify you of any changes to the Subscription Fee prior to the date on which your Subscription Term will renew. You hereby agree to any such revised Subscription Fees and your sole remedy if you disagree with such changes is to terminate your account and stop using the Subscription Services.
5. Interruptions or Discontinuation of Subscription Services
Changes to Subscription Services and Terms of Use Dan Smarg Photography reserves the right at any time, at its sole discretion and without notice, to suspend, modify, discontinue or permanently cancel the Subscription Services or any portions thereof, including the Subscription Plans and any policies, features and terms applicable thereto. If the Subscription Services, or any part thereof, to which you subscribe are permanently discontinued or canceled by Dan Smarg Photography, your Subscription will terminate, and we will have no further liability to you. You acknowledge that the Subscription Services may be interrupted from time to time, with or without notice, for maintenance, upgrades, system updates or in the event of equipment failure or for any other foreseeable or non-foreseeable cause.
DAN SMARG PHOTOGRAPHY 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: Http://www.dansmargphotography.com/contact providing clear written notice of such request. When Dan Smarg Photography receives your termination request, Dan Smarg Photography will terminate your Subscription and notify you of such termination via email. Dan Smarg Photography may request additional information from you prior to terminating your Subscription. Your Subscription is not terminated until you receive confirmation of such termination from Dan Smarg Photography. If you terminate your Subscription, such termination will be effective immediately upon your receipt of such confirmation from Dan Smarg Photography, 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.
Dan Smarg Photography may terminate a Subscription, or any user's access to and use of the Subscription Services, at any time for any reason at its sole discretion, which such termination will be effective immediately. If you violate the Terms of Use, Dan Smarg Photography at its sole discretion may (i) require you to remedy any violation thereof and/or (ii) take any other actions that Dan Smarg Photography deems appropriate to enforce its rights and pursue available remedies.
All Subscription Fees are nonrefundable. Upon termination, cancellation or discontinuation of your Subscription for any reason, you will not be entitled to receive a refund for any Subscription Fees or other amounts previously charged to you, or for any unused portion of any Subscription Fees if such termination, cancellation or discontinuation occurs prior to the expiration of the applicable Subscription Term.
You may change your email, credit card information or other Payment Information for your account by using the Account Settings available in your user profile. It is solely your responsibility to keep your account information and Payment Information accurate and up-to-date. If the Payment Information for your account is invalid and cannot be billed for the renewal Subscription Fee at the time such Subscription Fee is payable and due, then Dan Smarg Photography may terminate your account for nonpayment. If Dan Smarg Photography 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. Dan Smarg Photography cannot guarantee that you will receive notice of the termination of your account.
7. Analytics Services:
Dan Smarg Photography provides its users of the Subscription Services with the opportunity to obtain an “Ongoing” or “Upgraded” Smart Photos™ Analytics account for continued brand engagement and sales conversion analytics across multiple mobile and internet-based platforms. This analytics service may be provided in addition to or supplemented by third party companies and their respective analytics services (collectively as “Third Party Company” and/or “Analytics Services”). Analytics that fall under this category are governed by the terms of service for the Third Party Company, in addition to Dan Smarg Photography’s Terms of Use. If you choose to utilize Dan Smarg Photography’s analytics services, you may obtain a valid updated copy of said Third Party’s Terms of Service and Privacy Policy via written request only. You must email: Http://www.dansmargphotography.com/contact to make such a written request. Upon receipt of your request, Dan Smarg Photography is required to procure and provide the relevant documents. At such time that the requested legal forms or documents are obtained, the Customer is required to review the Third Party Company's Terms of Service, as well as its policy regarding privacy and data gathering practices, and any other applicable policies, prior to use or continued use of the Dan Smarg Photography service. In order to utilize the Dan Smarg Photography analytics service, you may be asked to sign up for and obtain an Third Party service accounts. By agreeing to the Dan Smarg Photography Terms of Use set forth herein, your consent to any and all Terms of Services set forth by Third Party Company’s and Analytics Services is implied and hereby approved. By agreeing to the Dan Smarg Photography Terms of Use, you authorize Dan Smarg Photography to decide what Third Party Companies or Analytics Services may be necessary to provide you with a premium quality custom image analytics product. By agreeing to Dan Smarg Photography’s Terms of Use, you also agree and accept that any agreement pertaining to a Third Party Company or Analytics Service is directly and strictly between you and that Third Party. Dan Smarg Photography is not a party to that agreement and shall be held harmless should any legal disputes or laws suits arise. Accordingly, any questions regarding a Third Party Company or Analytics Service must be directed to that entity, including, but not limited to, questions regarding billing and all Terms of Use. The ability to use the Third Party services in connection with the Dan Smarg Photography Subscription Services is provided solely as a convenience to you, The Customer, and does not imply endorsement, approval, or control by Dan Smarg Photography of any Third Party Company or Analytics Service. Dan Smarg Photography makes no claim or representation regarding, and accepts no responsibility for, your use of any Third Party Company or Analytics Service, or for the quality, accuracy, nature, ownership or reliability thereof. Your use of any Third Party Company or Analytics Service through Dan Smarg Photography is solely at your own risk.
8. Backup Policy:
YOU ARE SOLELY RESPONSIBLE FOR CREATING AND MAINTAINING BACKUP COPIES OF ANY USER CONTENT YOU UPLOAD, POST OR MAKE AVAILABLE THROUGH THE SERVICES DURING ANY APPLICABLE SUBSCRIPTION TERM AT YOUR SOLE COST AND EXPENSE. YOU MAINTAIN RESPONSIBILITY AND LIABILITY FOR ANY LOSSES OR DAMAGES YOU INCUR FOR FAILURE TO MAINTAIN BACKUP COPIES OF YOUR USER CONTENT. DAN SMARG PHOTOGRAPHY 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 DAN SMARG PHOTOGRAPHY SERVICES.
Dan Smarg Photography uses third party vendors to host and store any Media that you upload to Dan Smarg Photography through your use of the Subscription Services. We may require our vendors to maintain certain standards with respect to your User Content, but Dan Smarg Photography does not guarantee that your User Content will be secure and/or available at all times during the Subscription Term. Dan Smarg Photography 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 Dan Smarg Photography's data destruction policies and cannot be recovered by Dan Smarg Photography or any third party vendor following deletion (including Amazon S3 if you have subscribed to a Dan Smarg Photography Vault account).
9. Use of User Information:
In the event that you obtain access to any Dan Smarg Photography user information, whether directly from Dan Smarg Photography or otherwise, including user names and emails (e.g., through the purchase of your Products by a Dan Smarg Photography user) (collectively the "User Information"), you agree that you may not use any such User Information in any manner except as may be specifically authorized by Dan Smarg Photography to carry out the purpose for which such User Information was provided. Without limiting the foregoing, you may not share such User Information with any third parties. Further, you agree not to use such User Information in any manner that would be in violation of Dan Smarg Photography's Privacy Policy. In no event will Dan Smarg Photography be obligated to provide you with any such User Information. You agree that this provision will apply both during and after the term of your Subscription.
10. Independent Contractors:
C. Use of the Dan Smarg Photography Subscription Services or Mobile Application, Dan Smarg Photography, does not create a partnership, agency, joint venture or any employee-employer relationship between you and Dan Smarg Photography or any Third Party Contractors. At all times the relationship between you and Dan Smarg Photography 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 Dan Smarg Photography Subscription Services.
1. Dan Smarg Photography™ Photos Payment Terms:
In order to purchase Products through the Dan Smarg Photography Services, you are required to provide valid Payment Information as required by Dan Smarg Photography. Dan Smarg Photography 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 Dan Smarg Photography's request. You agree to reimburse Dan Smarg Photography for any and all costs incurred in collecting amounts owed by you to Dan Smarg Photography or a Dan Smarg Photography 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 Dan Smarg Photography 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 Dan Smarg Photography reserves the right to collect the taxes or other related fees from you at any time. In certain jurisdictions, Dan Smarg Photography 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 Dan Smarg Photography photo services or any of its third party subcontracted photographers, we opened an ecommerce profile with SmugMug, Inc. (www.smugmug.com) The Dan Smarg Photography account on SmugMug is: www.Dan Smarg Photography.smugmug.com. If you purchase Dan Smarg Photography photo content via its website, www.Dan Smarg Photography.com, such content and downloads may be made available to you upon SmugMug, Inc and Dan Smarg Photography's receipt of your valid Payment Information. Dan Smarg Photography 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. Dan Smarg Photography 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: Http://www.dansmargphotography.com/contact
If you purchase Photo prints or other physical medium Products (i.e., photo books or other photo merchandise), Dan Smarg Photography will use its commercially reasonable efforts (and our Dan Smarg Photography 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. Dan Smarg Photography is not responsible for any delays in shipping. Dan Smarg Photography or the Dan Smarg Photography 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 Dan Smarg Photography 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.
My goal is to provide Customers the best service and photos possible. Because it's in everyone's best interest to capture great photos, I ask that, once a Service Agreement has been drafted and signed with the shoot booking date, Customers avoid circumstances that might result in a shoot cancellation. However, life happens and I understand some cancellations may be necessary. For your quick reference, I've extracted the Refund and Cancellation clauses from the general Terms of Use
To cancel a shoot, the Customer must submit the Shoot Cancellation / Refund Request Form online. A Customer may cancel a scheduled shoot upon the following conditions:
CUSTOMER CANCELLATION PRIOR TO SCHEDULED SHOOT:
1. After submitting a request for a scheduled or on-demand shoot, the Customer may cancel the request with no penalty as long as no booking date or time has confirmed. A full refund will be issued.
2. Once the Service Agreement is signed and a shoot is confirmed and booked, no cancellation may occur without penalty. (See details below.)
3. Upon booking a scheduled shoot, Customer may cancel the request with no penalty up to 24 hours prior to the scheduled start time provided that the shoot is immediately rescheduled.
3A. If the Shoot is not immediately rescheduled, the Deposit will be retained with no exceptions.
4. Upon booking a scheduled shoot, Customer may cancel the request less than 24 hours prior to the scheduled start time, but will be assessed a Cancellation Fee of 50% of total shoot value.
5. Any cancellation that occurs less than 12 hours in advance of a scheduled time will incur a 100% Shoot Fee Penalty. The Deposit and the balance will be due immediately.
6. Customer is permitted to cancel one (1) on-demand or scheduled shoot every 30 days with no penalty. More than one cancellation in 30 days or less may result in the termination of the Service Agreement and the total forfeiture of the Deposit.
CUSTOMER CANCELLATION DURING A SCHEDULED SHOOT:
Cancellations requested during a live shoot must comply with the following criteria:
1. 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 must submit a Shoot Cancellation / Refund Request Form citing any or multiple of the following reasons:
A. Photographer cancelled prior to scheduled shoot time.
B. Photographer did not arrive at all; arrived late; or is not working efficiently to complete the shoot within the scheduled period.
C. 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.
D. Photographer is not open to suggestion or is not following directions about what images to capture.
E. Photographer is making inappropriate comments, or is not conducting him/herself in a professional manner.
F. Photographer did not arrive with the proper equipment to capture the photos described in the Shoot Description & Photo Assignment.
G. Additional Reason (Please explain via the Photo Shoot Review Form)
3. Both the Customer and Photographer must mutually agree to end the shoot prior to the scheduled wrap time. Both the Customer's Photo Review Form & Shoot Cancellation / Refund Request Form must coincide with the Photographer's Shoot Report to corroborate this agreement by providing the same reason for cancellation. If the reports do not match, then we will conduct an internal investigation of what happened. Refund is subject to Dan Smarg Photography’s approval.
For full details regarding Shoot Cancellations, when and how they are processed, please review our Shoot Cancellation Policy as described in the general Terms of Use
PHOTOGRAPHER CANCELLATION POLICY
I take customer satisfaction very seriously. The following Cancellation Policies apply to me:
1. Photographers may cancel a shoot up to 24 hours in advance with no penalty provided:
A. They submit a Shoot Cancellation / Refund Request Form
B. The cancellation request is confirmed and granted pending written Customer permission via email.
C. If the cancellation request is denied or otherwise not confirmed, I MUST show up for the shoot regardless of other plans. Failure to do so will result in a forfeiture and full refund of the security Deposit.
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 Photographers. Please do not contact your credit card company to dispute a charge before contacting Dan Smarg Photography.
Every Refund Request is assigned to a highly trained Photographer Liaison who will moderate and resolve all disputes that may arise. Should the Photographer 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.
Requesting Refunds:
To request a refund, all Customers must submit a Shoot 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, I cannot offer refunds of any kind to Customers who do not review their photos and submit the form during their shoots. I have to do this to protect myself from generally dissatisfied Customers who choose to be difficult rather than simply collaborating while we are working together to make sure they are getting exactly what they want from the shoot. As a result, I have the personal responsibility to ensure their work is both appreciated and quickly delivered. Due to the potentially subjective nature of these Services, I ask that you please comply so everybody gets what they want from our collaboration.
- 100% Booking Fee Refunds: Granted only if shoot is cancelled within the first half of the scheduled shoot time and the Customer and Photographer mutually agree to cancel the shoot.
- Up to 50% Booking Fee Refunds: May be granted based on upon the Photographer’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. Otherwise, the Photographer will be paid in full for completing the confirmed shoot Services.
- Print Material Returns: Since prints are provided by a variety of third-party services, all print materials are subject only to the terms of use for the company from which they were purchased. Dan Smarg Photography shall not be held liable for any Customer refund claims pertaining to print materials. In the interest of maintaining a good working relationship with both the Customer and the third-party provider, we may choose to moderate any disputes, but are not obligated to intervene or provide any refund for third-party services regardless of the outcome of any dispute.
4A. Return Policy:
From lens to product page, your satisfaction is guaranteed - 100%. Dan Smarg Photography 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 Http://www.dansmargphotography.com/contact 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: Http://www.dansmargphotography.com/contact. Please do not contact your credit card company to dispute a charge before contacting Dan Smarg Photography.
4B. Shoot “Wrapped” Agreement:
When your shoot is done, your Photographer will ask you if you are satisfied with the results of the shoot. Presuming you are, your Photographer will assist you in completing the shoot and releasing payment to Dan Smarg Photography 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 Dan Smarg Photography. At this time, no further refunds may be requested or are granted. No exceptions.
5. Product Delivery, Availability & Pricing:
Dan Smarg Photography 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 Photographer who captures the images. The Customer may request to see all the images captured in writing, but we highly recommend just trusting the Photographer’s judgement. You may, on location or on set, identify which images (filenames) you definitely want the Photographer to include in your selects. All images are subject to removal from online servers at Dan Smarg Photography'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: http://www.dansmargphotography.com/contact. Dan Smarg Photography or the Dan Smarg Photography 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:
Dan Smarg Photography 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 Dan Smarg Photography 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. Dan Smarg Photography or a third party Dan Smarg Photography 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 DAN SMARG PHOTOGRAPHY'S SOLE AND EXCLUSIVE LIABILITY, WITH RESPECT TO THE PURCHASE OF ANY PRODUCTS USING THE SERVICES, AND DAN SMARG PHOTOGRAPHY 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 Dan Smarg Photography users may be entitled to license digital versions of such user's Photos to other Dan Smarg Photography users for an applicable license fee under the terms of such user's written request. If you would like to license content to another Dan Smarg Photography user, please contact us via email to make proper arrangements: Http://www.dansmargphotography.com/contact
CONTENT RIGHTS
1. Rights Granted by Content Owner: By uploading or posting Photos to be licensed to Dan Smarg Photography or other users, Content Owner hereby grants to Dan Smarg Photography the right to facilitate the licensing by Content Owner of Photos posted on Dan Smarg Photography to a licensee according to the licensing designation (a Commercial Use License or Personal Use License) identified by the Content Owner or Dan Smarg Photography upon submission of the Photos.
2. Content Owner Responsibilities Content Owner is responsible for all Photos posted to Dan Smarg Photography through the Services, including without limitation the designation of Photo license types (either personal or commercial) and the setting of license fees (if applicable) through the tools available in Content Owner's Account Settings.
3. Media Submission and Licensing: As set forth in the Terms of Use, Photos submitted to Dan Smarg Photography through the Services or mobile application, Dan Smarg Photography may be rejected or removed from the Services at any time for any reason or for no reason at Dan Smarg Photography's sole discretion. Photos designated for commercial license should be free from any distinguishable third party names, trademarks, logos, copyright designs, works of art, architecture, or any other depictions requiring additional rights. Content Owner understands and agrees that all Photos are licensed directly by the Content Owner subject to the license and the license type and the license fees (if applicable) for Photos as chosen by Content Owner. Dan Smarg Photography merely facilitates and enables such license and does not maintain any responsibility or liability for the Photos. So long as Content Owner has agreed to make the Photos available through Dan Smarg Photography Services or the mobile application, Dan Smarg Photography there will not be any restraint on the licensing of such Photos through the Services to any Dan Smarg Photography users to the fullest extent possible, according to the type of license provided by the Content Owner.
4. Representations and Warranties of Content Owner Content Owner represents and warrants to Dan Smarg Photography that: Content Owner owns (or has legal right to represent and license) all intellectual property rights, title and interest in and to all Photos, including applicable copyrights, submitted through the Services and has the right to grant all licenses granted herein without violating the rights of any third party; If the Content Owner who is agreeing to these Terms of Use is an agent of the copyright owner(s), then the Content Owner has been granted full authority of the copyright owner(s) to enter into this agreement; All information concerning all Photos provided by Content Owner to Dan Smarg Photography through the use of the Services is, to the best of Content Owner's knowledge, true and accurate; and All Photos submitted or posted by Content Owner have all necessary releases, consents and permissions required to grant the licenses granted under the applicable license, including, without limitation, valid Model Releases and Property Releases for Photos depicting recognizable people (living or dead) and private properties, permissions regarding posting Photos containing individuals under the age of 18, and all written permission regarding all distinguishable trademarks.
5. Definitions: Capitalized terms used but not defined in these Terms of Use above will have the following meanings: "Commercial Use License" means a licensing type in which the licensee is entitled to use the Photos or Videos subject to the commercial use license.
"Model Release" means a written release signed by or on behalf of any living person or the estate of a deceased person who is depicted in whole or in part in any Photos.
"Personal Use License" means a licensing type in which the licensee is entitled to use the Photos subject to the personal use license.
"Property Release" means a written release from the owner and/or occupier of any property that is depicted in whole or in part in any Photos.
E. Copyright Policy: In accordance with the Digital Millennium Copyright Act of 1998 ("DMCA"), the text of which may be found on the U.S. Copyright Office website athttp://www.copyright.gov/legislation/pl105-304.pdf, and other applicable laws, Dan Smarg Photography has adopted a policy of terminating, in appropriate circumstances and at Dan Smarg Photography's sole discretion, the accounts of users who are deemed to be repeat infringers.
Dan Smarg Photography may also, at its sole discretion, limit access to Dan Smarg Photography'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. Dan Smarg Photography will respond to claims of copyright infringement committed using Dan Smarg Photography that are reported to Dan Smarg Photography'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 Dan Smarg Photography Services by completing the following DMCA Notice of Alleged Infringement and delivering it to Dan Smarg Photography's Designated Copyright Agent.
Upon receipt of the Notice as described below, Dan Smarg Photography will take whatever action, at its sole discretion, it deems appropriate, including removal of the challenged material from the Dan Smarg Photography 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 Dan Smarg Photography 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 Dan Smarg Photography's Designated Copyright Agent:
Designated Agent
Dan Smarg
Address of Designated Agent
5916 Las Virgenes Road | Calabasas, CA 91302
Email & Phone of Designated Agent
dsmarg@gmail.com
323.819.0497
F. eSignature Box Disclosures & Consent:
Scroll to the Bottom to Continue
I understand I will have to scroll & read to the bottom of the disclosures & consent document before I can continue with the eSignature Box process.
Consent to the Use of My Electronic Signature
By clicking "Agree & Continue", I consent to the use of my electronic signature instead of a physical signature to execute the Photography & Related Services, and/or any corresponding documents for which I have initiated or applied, and I agree to be bound by the terms of the documents as if I had signed it with my physical signature.
Acknowledgment to Receive Notices, Renewals, and/or Extensions Electronically
I understand that, by my electronic signature, I hereby give my permission to Dan Smarg and all legal assigns consent to the use of my electronic signature instead of a physical signature to execute Photography & Related Services as well as any corresponding documents and agree to be bound by the terms of such a renewal or extension as if I had signed it with my physical signature.
Acknowledgment of Review of Electronic Signature Consent and Disclosures
I have received and reviewed this consent before providing my electronic signature and I have no difficulty accessing this information that has been provided to me electronically.
Acknowledgment of Option to Use or Not Use Electronic Signature Functionality
I understand that I am not required to sign the Photography Services contract. If I prefer to sign with my physical signature, I understand that I may obtain a physical copy of the executable documents from Dan Smarg or legal assigns, complete it, physically sign it and return it.
Ability to Withdraw Consent to the Use of My Electronic Signature
I understand that, prior to my execution of the documents, I may withdraw my consent to use the electronic signature functionality and/or my consent to provide notices in electronic form or to receipt of any notice in electronic form by Dan Smarg or legal assigns.
System Requirements to Utilize the Electronic Signature Functionality
To utilize the Electronic Signature functionality, a web browser that supports the HTTPS protocol, HTML, and cookies (e.g., including but not limited to, current versions of Chrome, Firefox, Internet Explorer, or Safari) will be needed. Viewing PDF documents requires Adobe Acrobat/Reader or similar software.
Instructions to Change Consent and/or Update Contact Information
I understand that I should contact Dan Smarg directly to request paper copies of documents, withdraw consent to conduct business electronically, and/or update my contact information.
Save My Signature Consent and Disclosure
By clicking "Save & Continue" at the next screen, I agree and consent to the use of my electronic signature, inclusive of my chosen signature and initials, instead of a physical signature to execute all documents chosen including legally binding contracts, and agree to be bound by the terms thereof as if I had signed each document with my physical signature.