TERMS OF USE

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Shootly, Inc. TERMS OF USE

Last Modified on August 5, 2015

PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.

Welcome to the Shootly, Inc. website (the “Site”) and/or the mobile software application (the “App”).  Your access and use of the App, the Site and of features, products and services provided by Shootly, Inc. (“Shootly,” “we,” “us,” or “our”) through the Site and/or the App, but excluding any software, products or services provided by Shootly under a separate written agreement, (individually and collectively, the “Service”) is subject to the terms and conditions in this Terms of Use (this “ToU”).

You must agree to this ToU in order to use the App, the Site and/or the Service.  If you use the App, the Site and/or the Service, or click to join and/or sign in or agree to this ToU if presented to you in a user interface for the Service, we will understand this as your acceptance of this ToU and your agreement to all of its terms and conditions.  By accepting this ToU or using the App, the Site and/or the Service, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside.  If you do not accept this ToU, then you may not use the App, the Site or the Service.  If you are using the App, Site or the Service on behalf of your employer or another entity, you represent and warrant that you have full legal authority to bind your employer or such other entity to this ToU.  If you do not have such authority, then you may not use the App, Site or the Service on behalf of your employer and you must discontinue all use of the App, the Site and the Service immediately.

1.      ToU Updates.  Shootly may update this ToU at any time and Shootly will make the updated ToU available or post the updated version of this ToU on the App and/or the Site.  You understand and agree that you will be deemed to have accepted the updated ToU if you use the App, the Site or the Service after the updated ToU is made available to you.  If at any point you do not agree to any portion of the ToU then in effect, you must immediately stop using the App, the Site and the Service.

2.      Provision of the Service.  You are solely responsible for all data, SMS and mobile carrier charges in connection with the mobile phones on which you have installed the App. You are responsible for any Internet connection and telecommunications fees and charges that you incur when accessing the App, the Site and the Service.  You acknowledge and agree that Shootly may make changes to the App, the Site and/or the Service at any time without notifying you in advance.

3.      Termination of Service.  Shootly reserves the right to deny service to any person or entity at Shootly’s sole and absolute discretion.  You acknowledge and agree that Shootly may stop providing the App, the Site and/or the Service or restrict your use of the App, the Site and/or the Service at any time, without notifying you in advance, for any reason or no reason, including, without limitation, for any violation of this ToU and/or if Shootly suspects that you have used any aspect of the Service to conduct any fraudulent or illegal activity.  If Shootly disables your access to your account, you may be prevented from accessing the Service, your account details and/or any materials (including any photos or videos) contained in your account.

4.      Accounts and Security.  Shootly is a platform that enables individuals seeking services (each, a “User”) to directly connect with photographers and videographers (whether an individual person, group or an entity, each, a “Photographer”) and/or dronographers controlling an unmanned aerial vehicle on the ground (whether an individual person, group or an entity, a “Dronographer,” and a Dronographer or a Photographer, each a “Service Provider”). You hereby acknowledge and understand that Service Providers are not employees of Shootly.

4.1.Account.  Users are not required to create accounts; however, to access certain aspects of the Service, a user must have an account. Service Providers must create an account and a profile page from which Users can contact you.  You can create an account by completing the registration process.  You may be required to provide information about yourself as part of the registration process or your continued use of the Service.  You agree that any registration information that you submit to Shootly will be correct, accurate and up to date.

4.2.Fees.

(a)     If you are a User, you agree to pay all fees and applicable taxes incurred by you or anyone using your account, if any.  All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable.

(b)     Shootly uses Braintree, a division of PayPal, Inc. (Braintree) for payment processing. In order for you to use Braintree’s payment processing services, you must enter into the Merchant Services Agreement (the “MSA”) with Braintree and its sponsoring bank. The MSA is available at www.braintreepayments.com/agreements/merchant. By accepting this Agreement, you agree: (a) that you have downloaded or printed the MSA, and (b) that you have reviewed and agree to the MSA. Please note that Shootly is not a party to the MSA and that you, Braintree and Braintree’s sponsoring bank are the three parties to the MSA and that Shootly has no obligations or liability to you under the MSA. If you have questions regarding the MSA, please contact Braintree at 877.434.2894.

(c)     Shootly, Braintree and any other third party service provider Shootly may engage to handle billing matters, as applicable, may, from time to time, modify, amend, or supplement its pricing and billing procedures. Such changes shall be effective immediately upon posting an update of this ToU, posting such changes elsewhere on the App and/or the Site or posting changes on such third party service provider’s website or mobile application, as applicable.  If there is a dispute regarding your payment of fees, or the Service, Shootly shall have the right to terminate your account without prior notice.  YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES ARE NON-REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT.

4.3.Account Security.  Maintaining account security is very important.  You are solely responsible for maintaining the confidentiality of your account password.  You agree to notify Shootly immediately if you become aware of any unauthorized use of your password or of your account.

4.4.Account Sharing or Transfers.  Accounts are registered to you personally and may not be sold, traded, gifted or otherwise transferred at any time under any circumstances. You may not share your account.  You may not disclose your password to anyone else.

4.5.Account Cancellation by You.  You have the right to cancel your account at any time.  You may cancel your account by deleting the App from your device or by following the instructions provided through the Service for closing your account. Once you cancel your account, your personal information will no longer be viewable by other users. However, content previously shared with other users may remain viewable by those users until they delete such content.

4.6.Termination by Shootly.  Shootly may at any time terminate your account if:

a.       Shootly determines that you are (a) in breach of or otherwise acting inconsistently with this ToU or (b) engaging in fraudulent or illegal activities or other conduct that may result in liability to Shootly;

b.      Shootly determines it is required by law to terminate your account; or

c.       Shootly decides to stop providing the Service or critical portions of the Service in the country where you reside, access the App, the Site or use the Service or Shootly determines that it is no longer in its business interests to continue providing the Service or critical portions of the Service.

4.7.Effect of Account Termination or Cancellation.  If you voluntarily terminate your account or allow your account to lapse, you may lose the ability to reactivate your account.  Accounts terminated by Shootly for any type of abuse including, without limitation, a violation of this ToU, may not be reactivated for any reason.

5.      App Use Requirements.

  • Installation. To use the service on an App, you will be required to install the App on one or more mobile devices that you own or control and that meet the minimum specifications provided by Shootly.
  • Updates. Shootly may require that you download and install updates to the App from time to time. You acknowledge and agree that Shootly may update the App with or without notifying you and add or remove features or functions to the App at any time in its sole discretion.  You acknowledge and agree that Shootly has no obligation to make the App available to you, make any subsequent versions of the App available to you or to continue to support the App in any way.  You acknowledge that your access to the App may not be continuous, features may change during your use of the App, and Shootly may terminate your access to the App or stop offering the App at any time.

5.3.Agreements.  You acknowledge that you may only use the App in connection with the Service provided through the App in accordance with this Agreement.  The requirements hereunder and this Agreement may change as the App and/or Service evolve.

6.      License; Restrictions and Conditions of Use.

6.1.License.  Subject to the terms and conditions of this Agreement and for the sole purpose of using the Service, Shootly hereby grants you a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to (i) install the App on one or more mobile devices which are owned by you, are under your control and which meet Shootly’s minimum specifications; and (ii) view, review and utilize the App and any related information provided to you by Shootly.

6.2.Use of the Service.  Shootly permits you to view and use the App and/or the Site solely for your personal, non-commercial use (unless otherwise permitted in a separate written agreement with Shootly) .  You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, materials, data or services obtained from the App, the Site or through the Service.

6.3.Accessing the Service.  You agree not to access, or attempt to access, the Service by any means other than through the Service.  You specifically agree not to access, or attempt to access, the Service through any automated means (including, without limitation, through the use of scripts, bots, spiders or web crawlers).

6.4.No Violation of Laws.  You agree that you will not, in connection with your use of the App, the Site or the Service, violate any applicable law, ordinance, rule, regulation or treaty.  Without limiting the foregoing, you agree that you will not make available through the App, the Site and/or the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).

6.5.Use Restrictions.  You may not connect to or use the App, the Site or the Service in any way that is not expressly permitted by this ToU.

a.       You may not: (a) remove any proprietary notices from the Service or any copy of software provided to you by Shootly (“Software”); (b) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Service; (c) sell, assign, rent, lease, act as a service bureau, or grant rights in the Service, including, without limitation, through sublicense, to any other person or entity without the prior written consent of Shootly; or (d) make any false, misleading or deceptive statement or representation regarding Shootly and/or the App, the Site or the Service.

b.      Without limiting the foregoing, you agree that you will not: (i) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the App, the Site and/or the Service (or any servers, systems or networks connected to the App, the Site or the Service) or otherwise attempt to obstruct, disrupt or interfere with the operation of the App, the Site and/or the Service or any other person’s or entity’s use of the App, the Site and/or the Service (or any servers, systems or networks connected to the App, the Site or the Service); (ii) attempt to gain unauthorized access to the App, the Site, the Service, accounts registered to other users, or any servers, systems or networks connected to the App, the Site and/or the Service; (iii) charge any person or entity, or receive any compensation for, the use of the App, the Site or the Service, unless you are specifically authorized to do so in a separate written agreement with Shootly; (iv) use the App, the Site or the Service to (y) develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful; or (z) perform any unsolicited commercial communication not permitted by applicable law; or (v) engage in any activity that (A) constitutes harassment or a violation of privacy or threatens other people or groups of people; (B) is harmful to children in any manner; (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (D) violates any applicable law, ordinance, rule, regulation or treaty.

c.       Without limiting the foregoing, you agree that you will not use the Service (i) for any commercial purpose (unless specifically authorized to do so in a separate written agreement with Shootly) or the benefit of any third party or any manner not permitted by the licenses granted herein; or (ii) for any other unlawful, prohibited, abnormal or unusual activity Shootly may determine, in Shootly’s sole discretion.

 

6.6.No Data Mining or Harmful Code.  You agree that you will not (a) obtain or attempt to obtain any information from the Service including, without limitation, personal information of other account holders or other software data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the App, the Site or the Service, whether through the use of a network analyzer, packet sniffer or other device; (c) intercept, examine or otherwise observe any conversations or chats between other account holders; or (d) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse routing, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the App, the Site or the Service.

6.7.Violation of this ToU.  You acknowledge and agree that you are solely responsible, and Shootly has no responsibility or liability to you or any other person or entity, for any breach by you of this ToU or for the consequences of any such breach. Shootly may at its option, terminate its relationship with you, or may suspend your account immediately if it determines you are using the Service contrary to the restrictions found in this Section 6 or any other terms of this ToU.

7.      Links.

7.1.Links from the Service.  The App and/or the Site may contain links to websites operated by other parties.  Shootly provides these links to other websites as a convenience and use of these websites is at your own risk.  The linked websites are not under the control of Shootly and Shootly is not responsible for the content available on the other websites.  Such links do not imply Shootly’s endorsement of information or material on any other website and Shootly disclaims all liability with regard to your access to and use of such linked websites.

7.2.Links to the App and/or the Site.  Unless otherwise set forth in a written agreement between you and Shootly, you must adhere to Shootly’s linking policy as follows:  (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with Shootly’s and/or its licensors’ names and trademarks; (ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Shootly; and (iii) when selected by a user, the link to the Site must display the Site on full-screen and not within a “frame” on the linking Site.  Shootly reserves the right to revoke its consent to the link at any time and in its sole discretion.

8.      Intellectual Property.

8.1.Trademarks.  The Shootly name and logo are trademarks with all rights, title and interest therein.  Unless permitted in a separate written agreement with Shootly, you do not have the right to use any of Shootly’s trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.

8.2.Ownership.  You acknowledge and agree that Shootly, or its licensors, owns all right, title and interest in and to the App, the Site and the Service, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the App, the Site and the Service are protected by U.S. and international copyright laws.  Further, you acknowledge that the Service may contain information that Shootly has designated as confidential and you agree not to disclose such information without Shootly’s prior written consent.

8.3.Copyright Agent.  Shootly respects the intellectual property rights of others, and requires that the people who use the App, the Site and the Service do the same. Shootly maintains a policy of termination in appropriate circumstances of users who use the App, the Site and/or the Service for repeat infringements. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:

  • Your address, telephone number, and email address;
  • A description of the copyrighted work that you claim has been infringed;
  • A description of where the alleged infringing material is located;
  • A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
  • A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

 

Copyright Agent: Legal Department
Shootly, Inc.
1107 Venice Blvd., #106

Venice, CA 90291

Tel:      (818) 515-2677
Email: info@getshootly.com

 

8.4.Third Party Software and Services.  The Service may be incorporated into technology, software and services owned and controlled by third parties. Use of such third party software or services is subject to the terms and conditions of the applicable third party license agreements (including, without limitation, terms of use and terms of service agreements posted on third party websites and privacy policies posted on third party websites), and you agree to look solely to the applicable third party and not to Shootly to enforce any of your rights in relation thereto.

9.      Social Networks.  The Service includes features that operate in conjunction with certain third party social networking websites that you visit such as Facebook (“Social Network Features”).  While your use of the Social Network Features is governed by this ToU, your access and use of third party social networking websites and the services provided through these websites is governed by the terms of service and other agreements posted on these websites.  It is impossible for Shootly to determine in each case whether your use of the Social Network Features would cause you to violate or breach the terms of service and/or other agreements posted on these third party websites.  You understand and acknowledge that your use of the Social Network Features may cause you to violate or breach the terms of service and other agreements posted on these third party websites which could result in the termination of your account and ability to access these third party websites and, in some cases, could give rise to liability for damages.  YOU AGREE THAT YOU ALONE ARE RESPONSIBLE FOR YOUR USE OF THE SOCIAL NETWORK FEATURES AND THAT SHOOTLY WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR YOUR VIOLATION OR BREACH OF ANY TERMS OF SERVICE OR OTHER AGREEMENT THAT MAY RESULT FROM YOUR USE OF THE SOCIAL NETWORK FEATURES.

10.  Privacy Policy.  By accepting this ToU or using the App, the Site and/or the Service, you represent that you have read and consent to our Privacy Policy in addition to this ToU.  Shootly may revise the Privacy Policy at any time and the new versions will be posted on the App and/or the Site.  If at any point you do not agree to any portion of the Privacy Policy, you must immediately stop using the App, the Site and the Service.

11.  Location.  The App, the Site and the Service are operated by Shootly in the United States.  If you choose to access the App, the Site and/or the Service from a location outside of the United States, you do so on your own initiative and you are responsible for compliance with applicable local laws.

12.  Created Work.

12.1.        The Service provides Service Providers with the ability to post photos, videos and other content ordered by a User through the Service (“Created Work”) for such User to download and/or purchase. Shootly may in its sole discretion block, prevent delivery of or otherwise remove the content of communications as part of its effort to protect the Service or its users, or otherwise enforce this ToU. Further, Shootly may in its sole discretion remove such content and/or terminate this ToU and your Account if you use any content that is in breach of this ToU.

12.2.        Users Retain Rights to Created Work. Once the User has paid the Service Provider for the Created Work, the User that ordered the Created Work through the Service retains ownership and/or other applicable rights in such Created Work. For the sake of clarity, neither Shootly nor the Service Provider has the right to claim ownership of any Created Work for which the User has fully paid. The Service Provider may not sell or use, reproduce, publish, publicly display such Created Work for any purpose without User’s prior written permission.

12.3.        User License to Shootly. As stated above, once a Created Work has been fully paid for, neither Shootly, nor its affiliates or contractors will claim ownership of a Created Work made available through the Service; however, User hereby grants to Shootly a non-exclusive, perpetual, irrevocable, worldwide, paid-up right to reproduce, reformat, publish, distribute, transmit and publicly display, all Created Work in any and all marketing or promotional materials. By choosing to opt-in, which is at each User’s sole discretion, the Created Work may be included in the Service’s stock photo store (the “Photo Store”). With respect to Created Work made available for inclusion in the Photo Store (the “Published Work”), the User hereby grants to Shootly and its licensors, including without limitation its respective successors and assigns, a non-exclusive, perpetual, irrevocable, worldwide, paid-up right to reproduce, reformat, publish, distribute, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use such Created Work as contemplated by the Service (collectively, a “License Grant to Shootly”). You acknowledge and agree that Shootly may sublicense such rights to your Published Work to its sponsors and affiliates, and may use such Published Work in any and all marketing or promotional materials. In exchange for the License Grant to Shootly, Shootly will grant you a royalty amount to be determined at a later date for such used or purchased Published Work.

12.4.        Content of Communications. Shootly is not the source of, does not verify or endorse and takes no responsibility for the content of communications made using the Service. By using the Service, you agree that any content that you submit may be transmitted to the recipient of your communication. The content of communications is entirely the responsibility of the person from whom such content originated. You therefore may be exposed to content that is offensive, unlawful, harmful to minors, obscene, indecent or otherwise objectionable. The content of communications may be protected by intellectual property rights, which are owned by third parties. You are responsible for the content you choose to communicate and access using the Service. Shootly may in its sole discretion block, prevent delivery of or otherwise remove the content of communications as part of its effort to protect the Service or its customers, or otherwise enforce the terms of this ToU. Further, Shootly may in its sole discretion remove such content and/or terminate this ToU and your Account if you use any content that is in breach of this ToU.

12.5.        You acknowledge and agree that: (i) by using the App, the Site or Service, you may be exposed to content that you may find offensive or indecent and you do so at your own risk; (ii) you are solely responsible for, and Shootly has no responsibility to you or any third party for any Created Work that you create, submit, post or publish on the App, the Site or Service; (iii) Shootly does not guarantee any confidentiality with respect to Published Work (iv) Shootly is not responsible for any Created Work that you may have access to through your use of the App, the Site or Service and all Created Work is the responsibility of the person from whom such Created Work originated.  You acknowledge and agree that (i) Shootly has no control over and is not responsible for the use of Published Work by a User, including any user that has uploaded such Published Work to such user’s personal device; and (ii) Shootly will not be able to remove Published Work that is uploaded onto another User’s device. Shootly does not endorse any Created Work or any opinion, recommendation, or advice expressed therein, and expressly disclaims any and all liability in connection with all Created Work.

12.6.        You acknowledge that Shootly has the right to pre-screen any Published Work made available through the Photo Store, but no obligation to do so. At Shootly’s sole discretion, any Published Work may be included in the Service in whole or in part in a modified form.  In addition, Shootly and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Submitted Content that is available via the Site and/or the Service that violates this TOU or is otherwise objectionable including, but not limited to, being unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or violating any party’s intellectual property. You are responsible for ensuring that you do not submit material that is (i) copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner (ii) a falsehood or misrepresentation (iii) offensive, unlawful, harmful to minors, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; or (iv) impersonating another person.

12.7.        You acknowledge that the Published Work is your sole responsibility.  You are entirely responsible for the Published Work and agree, under no circumstance, will Shootly be liable in any way for Published Work, or any damage of any kind incurred as a result of the use or distribution of any Published Work transmitted or otherwise made available via the Service.

12.8.        You acknowledge and agree that you are solely responsible for your interaction with other users (both Users and Service Providers) of the Service, whether online or offline. Prior to becoming a Shootly Service Provider, a user must first pass a background check and Shootly’s quality controls to Shootly’s satisfaction. You agree that Shootly is not responsible or liable for the conduct of any users, Shootly reserves the right, but has no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment when interacting with others.

13.  Children.  The App, the Site and the Service are not directed toward children under 13 years of age nor does Shootly knowingly collect information from children under 13.  If you are under 13, please do not submit any personal information about yourself to Shootly.

14.  Disclaimer of WarrantIES.

14.1.        YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE APP, THE SITE AND THE SERVICE IS AT YOUR SOLE RISK AND THAT THE APP, THE SITE AND THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.

14.2.        TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SHOOTLY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

14.3.        SHOOTLY MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE APP, THE SITE OR THE SERVICE.

14.4.        SHOOTLY DOES NOT REPRESENT OR WARRANT THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE APP, THE SITE AND/OR THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (b) THAT OPERATION OF THE APP, THE SITE OR THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) YOUR USE OF THE APP, THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS; (d) DEFECTS IN THE OPERATION OF THE APP, THE SITE OR THE SERVICE WILL BE CORRECTED; OR (e) THE APP, THE SITE OR THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

14.5.        YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE APP, THE SITE OR THE SERVICE IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY LOSS OF DATA RESULTING FROM DOWNLOADING OR OBTAINING SUCH MATERIAL.

Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.

15.  Limitation of Liability; SOLE AND EXCLUSIVE REMEDY.

15.1.        TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SHOOTLY, AND ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”), SHALL NOT BE LIABLE TO YOU, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR:

a.                                                                   ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE APP, THE SITE AND/OR THE SERVICE, EVEN IF SHOOTLY AND/OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES;

b.                                                                  THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR

c.                                                                   THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY MATERIALS, INFORMATION OR DATA MAINTAINED BY OR THROUGH YOUR USE OF THE APP, THE SITE OR THE SERVICE.

15.2.        WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF SHOOTLY OR ANY OF THE RELATED PARTIES EXCEED ONE HUNDRED DOLLARS ($100).

Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Shootly and the Related Parties shall be limited to the fullest extent permitted by law.

16.  Indemnification.  You agree to indemnify, defend and hold Shootly and the Related Parties harmless from any and all claims, demands, damages or other losses including, without limitation, reasonable attorneys’ fees, resulting from or arising out of (i) your use of the Site and/or the Service or (ii) your breach of this ToU or any other policies that Shootly may issue for the Site and/or the Service from time to time.

17.  Governing Law; Jurisdiction. This ToU is governed by California law, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and Shootly agree that, except as otherwise provided in Section 18 below, the state and federal courts located in the County of Los Angeles, California will have exclusive jurisdiction of all disputes arising out of or related to this ToU or your use of the Site or the Service and agree to submit to the personal jurisdiction and venue of such courts. Notwithstanding the foregoing, Shootly shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.

18.  Binding Arbitration.

18.1.        Arbitration Procedures.  You and Shootly agree that, except as provided in Section 18.4 below, all disputes, controversies and claims related to this ToU (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 18 and the JAMS Rules, the terms in this Section 18 will control and prevail.

Except as otherwise set forth in Section 18.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and Shootly will have the opportunity for discovery of non-privileged information that is relevant to the Claim.  The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based.  The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator.  Except as otherwise provided in this ToU, (a) you and Shootly may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.

BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND SHOOTLY WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

18.2.        Location.  The arbitration will take place in Los Angeles, California, unless the parties agree to video, phone and/or internet connection appearances.

18.3.        Limitations. You and Shootly agree that any arbitration shall be limited to the Claim between Shootly and you individually. YOU AND SHOOTLY AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.

18.4.        Exceptions to Arbitration. You and Shootly agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of your or Shootly’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief.  In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.

18.5.        Arbitration Fees.  If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee.  If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration.  All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.

18.6.        Severability. You and Shootly agree that if any portion this Section 18 is found illegal or unenforceable (except any portion of Section 18.4), that portion shall be severed and the remainder of the Section shall be given full force and effect.  If Section 18.4 is found to be illegal or unenforceable then neither you nor Shootly will elect to arbitrate any Claim falling within that portion of Section 18.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and Shootly agree to submit to the personal jurisdiction of that court.

 

19.  General.

19.1.        ToU Revisions.  This ToU may only be revised in a writing signed by Shootly, or published by Shootly on the Site.

19.2.        No Partnership.  You agree that no joint venture, partnership, employment, or agency relationship exists between you and Shootly as a result of this ToU or your use of the Site or the Service.

19.3.        Assignment.  Shootly may assign its rights under this ToU to any person or entity without your consent. The rights granted to you under this ToU may not be assigned without Shootly’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.

19.4.        Severability.  If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.

19.5.        Attorneys’ Fees.  In the event any litigation or arbitration is brought by either party in connection with this ToU, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.

19.6.        No Waiver.  Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time.  An express waiver by Shootly of any provision, condition or requirement of this ToU shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.

19.7.        Notices.  All notices given by you or required under this ToU shall be in writing and addressed to:  Shootly, Inc., 1107 Venice Blvd. #106, Venice, CA 90291, ATTN: Legal Department.

19.8.        Export Administration.  You must comply with all export laws and regulations of the United States or any other country (“Export Controls”) and you shall not export, direct or transfer any portion of the Site or the Service, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.

19.9.        Equitable Remedies.  You acknowledge and agree that Shootly would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.

19.10.    Entire Agreement.  This ToU, including the documents referenced in this ToU, constitutes the entire agreement between you and Shootly with respect to the Site and the Service and supersedes any and all prior agreements between you and Shootly relating to the Site and/or the Service.

20.  Utilizing Your Computer or Other Device.  Some of the benefits of the Service require the Service to access information on your computer or other applicable device.  You hereby grant permission for the Service to monitor your computer or other applicable device (including, but not limited to, your device’s memory) and to communicate information, including, without limitation, your Account information, to Shootly’s servers for the purposes of analyzing your device’s performance during use of the Service. Additionally, the Service will utilize the processor, bandwidth and hard drive (or other memory or storage hardware) and/or cache of your computer or other applicable device for the limited purpose of facilitating the communication between, and the transmittal of data, content, services or features to, you and other users, and to facilitate the operation of the network of computers running instances of the Service.

21.  Privacy Policy. You must read and agree to this ToU and the supporting Privacy Policy to use the App, the Site and/or the Service. By using the App, the Site and/or the Service, you represent that you have read and consent to our Privacy Policy in addition to this ToU and agree with their content. Shootly may revise the Privacy Policy at any time and the new versions will be posted on the App or the Site. If at any point you do not agree to any portion of the Privacy Policy, you must immediately stop using the App, the Site and the Service. By using the App, the Site and/or the Service, you agree to the then current versions of the ToU and Privacy Policy, which will be posted on the App or the Site.

22.  Additional User Terms

22.1.        Cancelation Policy. User has the right to cancel a photography or video booking session made through the Service with a Service Provider (a “Session”) prior to the start time of such Session; however, there will be a $50 cancelation fee charged to the User in the following circumstances: (i) if such User cancels a Session less than one (1) hour from the Session’s start time regardless of when the Session was booked, (ii) if such User booked the Session at least 24 hours in advance of the Session’s start time and subsequently cancels such Session within 24 hours of the start time or (iii) if such User booked the Session less than 24 hours in advance of the Session’s start time and after 30 minutes of booking that Session, cancels such Session. Additionally, a User will be treated as if they have canceled the Session and charged a $50 cancelation fee if the User fails to be present at the determined location within 30 minutes of the start time, at the Service Provider’s discretion. User acknowledges and agrees that Shootly has no obligation to refund a User for a completed Session that Shootly, in its sole discretion, determines was delivered on time by the Service Provider and meets Shootly’s commitment to quality.

22.2.        Obligation to Service Provider. Prior to the start of the Session, User must notify the Service Provider of any reasonable dangers that may exist at the location site, such as animals, pets, asbestos, lead pipes, construction, and general surroundings that may be considered dangerous. User may not change the location of a Session upon the arrival of the booked Service Provider without the express consent of the Service Provider. Additionally, the User must immediately notify Shootly via email to support@getshootly.com of any such location changes. Failure to notify Shootly of any such location changes may result in cancelation of the Session and/or termination of such User’s account.

22.3.        Session Fees. User agrees to pay Shootly for the amount of time booked for each Session plus any additional time requested by such User. All payments to the Service Provider related to the Session must be made through the Shootly Service. User acknowledges and understands that he or she will be charged for any additional services requested from the Service Provider. Upon requesting any additional services, User will be prompted through the Service to accept the additional services and, upon such acceptance, will be charged for such services. Promotion codes are required to be entered in the Service at the time of the booking. Shootly will not accept promotion codes under any other circumstance or transmittal.

22.4.        Session Deliverables and Acceptance. Upon completion of the Session, Shootly will notify the User that the pictures and/or videos (as applicable, the “Deliverables”) are available for download (the “Notification”). The Deliverables will be available, and User agrees to accept the Deliverables, as any or all of the following source files: .JPEG, .PNG, MPF, 1080p/HD video format or .MOV. Unless specified by the User, the Deliverables for pictures will be made available for download in the .JPEG format. The Deliverables will be made available for User’s download for ten (10) days. Retouched or edited pictures may be available upon request. User acknowledges and understands that Shootly reserves the right to delete such Deliverables from the Service after such ten (10) day period. Consequently, it is the User’s responsibility to download the Deliverables within ten (10) days of receiving the Notification to avoid permanent loss of the Deliverables. If the Service requires information from the User, all required information, such as property address, listing agent information, logo(s) and/or specific title card information, must be provided and/or requested by User at the time of purchase. Shootly Service Providers are not responsible for incorrect or misspelled information provided by a User and/or any delays due to missing information required by a User.

(a)     Edited Videos. If the User chooses a Service that includes video, any stylistic and specific editing requests are not guaranteed and must be requested at the time of purchase; however, Service Providers reserve the right to refuse such requests. Raw video will not be provided to the User unless the Service chosen includes raw video(s). Unless specifically requested, videos will not contain music; however, music may be added to videos for an additional fee. Notwithstanding the foregoing, no copyrighted music may be used in any videos as the use of copyrighted material is prohibited.

(b)     Raw Photographs. If the User chooses a Service that includes raw photographs, raw photographs will be delivered to the User in accordance with Section 22.4[] (Delivery and Turnaround).

(c)     Edited Photographs. If Services include Edited Photograph(s), the quantity of Final Edited Photographs will be determined by Services.

22.5.        Delivery and Turnaround. Standard turnaround for delivery of the initial service by the Service Provider (the “First Delivery”) is as follows: (i) for Sessions related to raw photographs, within 12 hours after the Session and (ii) for Sessions related to videos, within 24 hours after the Session. Standard delivery for any edits to the First Delivery (the “Editing Session”) shall be made within 12 hours of such Session.  Rush delivery is available for an additional charge, when available. All rush delivery requests must be requested by User within the Service at the time the Service is booked and Shootly reserves the right to refuse such requests. If the chosen Service includes photographs, all such photographs will be electronically delivered to User in JPEG format unless another file format and/or delivery method has been requested by User and agreed upon by the Service Provider. If the chosen Service includes edited videos, all such videos will be electronically delivered to user in 1080p MPEG-4 (h.264) or .MOV video format, unless specific file format and/ or delivery method has been requested in advance by User and agreed upon by the Service Provider. After the First Delivery, User may request a single re-edit (a “Minor Alteration”) within 48 hours of receipt. If User does not request a Minor Alteration within time period set forth above, User foregoes his/her right to such Minor Alteration. Any Editing Session other than the Minor Alteration will be billed at the following rate: (i) for an edit to a photograph, at $10 per photograph and (ii) for an edit to a video, at $50 per hour.

22.6.        Posting and Uploading. Shootly is not responsible for purchasing a personal domain or creating a personal website for the User. Shootly is not responsible for posting the product of the Session (e.g., the photographs and/or videos) other than to the Service as described in this ToU.

22.7.        Location/Property Release. By choosing a location to shoot, User hereby acknowledges and agrees that such User has obtained any requisite approval from the property owner granting the Service Provider the right to shoot such photographs and/or videos of such location (be it interior and/or exterior, as applicable) using the necessary equipment and allowing the use of such photographs and/or videos as contemplated by this ToU. Such approval must include the right to photographs, digital images, drawings, renderings, video recordings and/or accompanying written descriptions of such location.

22.8.        Local Attractions. THE FILMING OF ANY PROPERTY NOT OWNED OR REPRESENTED BY USER INCLUDING, BUT NOT LIMITED TO, NON-PRIVATE PROPERTY, LOCAL ATTRACTIONS OR BUSINESSES, ARE CONTINGENT ON, BUT NOT LIMITED TO, LOCAL ORDINANCES, FILMING PERMITS, AND PERMISSION FROM THE OWNER(S) OF SUCH FEATURED BUSINESSES. SHOOTLY CANNOT GUARANTEE PERMISSIONS WILL BE GRANTED FOR SPECIFIC ATTRACTIONS REQUESTED BY USER AND MAY REQUEST A PHOTOGRAPH/VISUAL RELEASE FORM BE PROVIDED FOR SAID LOCATIONS BY USER.

22.9.        Parking.  It is the Service Provider’s responsibility to alert and disclose to the User upon arrival and prior to the start of the Session that the cost of parking is the User’s responsibility to reimburse the Service Provider upon the Service Provider adding an incremental charge for the total cost of the parking at either the beginning of the active Session or just prior to the end of the active Session.  In the event that the Service Provider fails to alert and disclose to the User the cost of parking in accordance with this Section 22.9, then the Service provider shall not be entitled to reimbursement from the User for such cost of parking.

22.10.    Complaints. User complaints and disputes must be submitted via Shootly’s customer service email address to support@getshootly.com within 24 hours of a completed Session.  Users are prohibited from contacting or filing a dispute directly with the Service Provider that serviced their Session. Shootly will respond within one (1) business day of any customer service request.