NEXT GEN PHOTO SOLUTIONS, INC. TERMS AND CONDITIONS
GENERAL TERMS AND CONDITIONS OF USE
LAST UPDATED: September 14, 2023
1.1 Parties and Agreement
These General Terms and Conditions of Use (hereinafter “the Terms”) constitute a binding contract between GotPhoto, Inc. (hereafter known as ”GotPhoto”, "us," "we," "our," ) and its customers (hereafter known as “Customer”, “you”) with regards to the services, defined in section 3. (the “Services”) and provided over the following websites (hereafter known as the "Site"): www.nextgenphotosolutions.com, www.nextgenalacarte.com, https://production.nextgenphotosolutions.com.
1.2 Entire Agreement
The Terms constitute the entire agreement between GotPhoto and the Customer relating to the Customer’s use of the Services. The Customer’s terms and conditions – including those on Customer’s website or mobile application – do not bind GotPhoto unless GotPhoto has expressly agreed to their validity in writing. Agreements, in particular, verbal subsidiary agreements, commitments, guarantees and other assurances by GotPhoto’s employees only become binding upon written confirmation by GotPhoto.
1.3 Modification
These Terms may be modified by GotPhoto at any time by posting the modified Terms. Any such modifications shall be effective immediately. The Customer can view the most recent version of these Terms at any time at www.nextgenphotosolutions.com/terms-and-conditions. Each use of our Services requires the Customer to agree to these Terms by clicking the consent checkbox when entering an order or using a subscription service and each such consent shall constitute and be deemed the Customer’s unconditional acceptance of these Terms.
2. Privacy Policy
The Customer represents and warrants that they have read and agree to be bound by GotPhoto’s Privacy Policy, which is incorporated into these Terms by reference. Our Privacy Policy can be found at www.nextgenphotosolutions.com/privacy-policy.
3. Services
GotPhoto provides digital services for high volume sports photography companies (the “Studio”), which help the Studio to (i) streamline the data management workflow during the order process, (ii) design virtual teams, (iii) create volume graphics and (iv) create specialty product designs.
GotPhoto provides a business-to-business service reserved for professional photography businesses. The Services are exclusively intended for the individual Studio’s own business purposes as a Studio in the exercise of its independent commercial or professional activities. GotPhoto does NOT provide Services to end customers.
The transfer of use of the Services to third parties is prohibited.
4. Registration and User Account
If you wish to access some or all of the Services, you may be required to register and create a user account, username and password (together “Account Credentials”).
Other information you may be required to provide during the registration process include: first name, last name, mailing address, telephone number, email.
When you create a user account with us, you guarantee that you are above the age of 18 and that the information you provide us is accurate, complete, and up-to-date at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your user account.
You are responsible for maintaining the confidentiality and safety of your Account Credentials and protecting them from access by any third party. You agree to accept responsibility for any and all activities or actions that occur with the use of your Account Credentials. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your Account Credentials or other unauthorized access to your account.
If we become aware that your Account Credentials are being used by an unauthorized third party, we reserve the right to refuse access to the Site, terminate any accounts, remove or edit content, or cancel orders at our sole discretion. An unauthorized third party means any party that is not the Customer registered for the Services with the Account Credentials in question.
5. Orders
Any time you desire to use the Services, you will need to place an order over your user account. The required order information may include image files, the first and last name of the photo subject, the name of a team or school, the jersey number.
We reserve the right to refuse or cancel your order at any time for any reason, including but not limited to Service availability, errors in the description or price of the Service, error in your order, your failure to follow defined workflow processes (described below in section 7).
We reserve the right to refuse or cancel your order if fraud or an unauthorized or illegal transaction is suspected.
6. Fees and Payment for Services
You will pay to GotPhoto all fees owed for the use of the Services in a timely manner. Parts of the Services may be offered on a subscription fee basis, the terms of which will be communicated to you at the time you purchase the subscription service. If you purchase a subscription service, you understand and agree that, in addition to the first payment, your credit card on file will be charged for additional subscription periods (e.g. once per month) without obtaining further permission or confirmation from you. In other words, subscription services renew automatically unless cancelled by you in advance of the next payment period.
In order to pay for the Services you will be asked to provide your credit card number, the expiration date of your credit card, the security code on your credit card, your billing address and your shipping address.
You represent and warrant that: (i) you have the legal right to use any provided credit card(s) or other payment method(s) in connection with the Services, and that (ii) the information you supply to us is true, correct, and complete.
We may employ the use of third-party services to facilitate payment for the Services. By submitting your information, you grant us the right to provide this information to these third parties for the purpose of paying for the Services subject to our Privacy Policy.
7. Workflow Errors that are Grounds for Refusal of Services
Services can be refused and orders canceled for, but not limited to, the following reasons:
(i) Scaling procedures not followed correctly;
(ii) Data capture not performed properly, including barcode scanning or manual data capture;
(iii) Posing guidelines not followed;
(iv) Lighting inconsistencies; or
(v) Guidelines on background, prop use, and number of individuals per image are not
followed correctly.
8. FTP File Storage
All files must be removed from the FTP site within 60 days after a job is completed. If they are not removed, we may remove them without prior notice.
9. Availability, Errors, and Inaccuracies
We are continually updating and improving the Services. We may experience delays in updating information and/or functionalities on the Site and in our advertising on other websites. We do not guarantee the continuous availability of the Services.
The information and Services found on the Site may contain errors or inaccuracies and may not be complete or up-to-date. Services may be mispriced, described inaccurately, or unavailable on the Site, and we cannot guarantee the accuracy or completeness of any information found or Services provided on the Site.
Therefore, we reserve the right to change or update the information and Services and correct errors, inaccuracies, or omissions at any time without prior notice.
10. Intended Audience
This website is intended for adults only. This website is not intended for any minors under the age of 18. [If you are under the age of 18, you may use this website only with the consent of a parent or guardian.]
11. Ownership and Intellectual Property
All Intellectual Property Rights in the Services, any deliverables, other content on the Site belong to GotPhoto and its affiliates and will remain vested in GotPhoto and its affiliates. Except as otherwise provided in these Terms, no rights are granted to Customer.
12. License to Use the Services
Subject to the restrictions set out in these Terms, GotPhoto hereby grants you a non-exclusive, limited-term and non-transferable right to use the Services, any related documentation and other related information (the “User License”).
Any copying, redistribution, publication, assignment, sublicense, sale, preparation of derivative works and any other use, other than permitted under these Terms, by you of the Services, any related documentation or other related information is prohibited. You agree not to access, adapt, copy, reverse engineer, decompile, disassemble or modify any technology underlying the Services and / or access or attempt to access the technology underlying the Services to build a product or Service which competes with the Services and deliverables provided under these Terms.
13. License to Host Your Data
You grant GotPhoto and its affiliates a worldwide, limited-term license to host, copy, transmit, display, alter, edit and modify your data, as reasonably necessary for GotPhoto to provide the Services and deliverables in accordance with these Terms. Subject to the limited licenses granted herein, GotPhoto acquires no right, title or interest from you under these Terms in or to any of your data.
14. Trademarks
Next Gen, Next Gen À La Carte, and others are either trademarks or registered trademarks of GotPhoto, Inc. Other product and company names mentioned on this Site may be trademarks of their respective owners.
Our trademarks and trade dress may not be used in connection with any product or site without the prior written consent of GotPhoto, Inc.
15. Compliance with Laws
You agree to comply with all applicable laws regarding your use of the Services and the provision of your data to GotPhoto.
16. Links to Other Websites
Our Site may contain links to third-party websites or services not owned or controlled by GotPhoto, Inc.
GotPhoto, Inc. has no control over and assumes no responsibility for the content, privacy policies, or practices of any third-party websites or services. We do not warrant the offerings of any of these entities/individuals or their websites.
You acknowledge and agree that GotPhoto, Inc. shall not be responsible or liable directly or indirectly for any damage or loss caused or alleged to have been caused by or in connection with the use of or reliance on any such content, goods, or services available on or through any such third-party websites or services.
We strongly advise you to read the terms and conditions and privacy policies of any third-party websites or companies you visit.
17. Indemnification
You agree to defend, indemnify, and hold harmless GotPhoto, Inc. and its licensees and licensors, and their employees, contractors, agents, officers, and directors, from and against any and all third party claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees), resulting from or arising out of (i) your use and access of the Site and its Services, (ii) a third party, utilizing your User Credentials, using and accessing the Site and the Services , or (iii) a breach of these Terms.
18. Disclaimer
THE INFORMATION ON THE SITE IS PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. YOU AGREE THAT USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK. GOTPHOTO, INC. DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY EXPRESS WARRANTIES, STATUTORY WARRANTIES, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TO THE EXTENT YOUR JURISDICTION DOES NOT ALLOW LIMITATIONS ON WARRANTIES, THIS LIMITATION MAY NOT APPLY TO YOU. YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO YOUR USE OF THE SITE AND SERVICES SHALL BE TO DISCONTINUE THE USE THEREOF.
GotPhoto, Inc., its subsidiaries, affiliates, and its licensors do not warrant that (i) the Services will be uninterrupted, secure, or available at any particular time or location; (ii) any errors or defects will be corrected; (iii) the Site, Services and deliverables are free of viruses or other harmful components; or (iv) the results of using the Services will meet your requirements
19. Limitation of Liability
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF GOTPHOTO AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THE SITE OR SERVICES, YOUR USE OF THE SITE OR SERVICES, OR THE CONTENT ON THE SITE, EXCEED THE TOTAL AMOUNT PAID BY YOU UNDER THE ORDER FOR THE SERVICES GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING LIMITATION OF LIABILITY WILL NOT APPLY WITH RESPECT TO WILFUL MISCONDUCT (INCLUDING INTENTIONAL BREACHES), GROSS NEGLIGENCE, ACTS OR OMISSIONS RISING TO THE LEVEL OF FRAUD (INCLUDING FRAUDULENT MISREPRESENTATION), INJURY TO LIFE OR BODY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, GOTPHOTO SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES OF ANY KIND, INCLUDING LOSS OF ACTUAL OR ANTICIPATED PROFITS OR REVENUE, LOSS OF CONTRACTS, LOSS OF ANTICIPATED BENEFITS OR SAVINGS, LOSS OF PRODUCTION OR OTHER BUSINESS INTERRUPTION LOSS, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THE SITE OR SERVICES, YOUR USE OF THE SITE OR SERVICES, OR THE CONTENT ON THE SITE, WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER GOTPHOTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GOTPHOTO WILL NOT BE LIABLE FOR LOSS OF OPPORTUNITY, LOSS OF GOODWILL OR LOSS OF REPUTATION, IN EACH CASE ARISING OUT OF OR IN CONNECTION WITH THE SITE OR SERVICES, YOUR USE OF THE SITE OR SERVICES, OR THE CONTENT ON THE SITE, AND REGARDLESS WHETHER SUCH LOSSES ARE DIRECT, INDIRECT OR CONSEQUENTIAL.
You may have additional rights under certain laws (including consumer laws) which do not allow the exclusion of implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, the exclusions or limitations in these Terms that directly conflict with such laws may not apply to you.
20. Termination
We may terminate or suspend your account and bar access to the Site immediately, without prior notice or liability, under our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of the Terms.
If you wish to terminate your account, you may simply discontinue using the Services.
All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, IP ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
21. Use of Information
GotPhoto, Inc. reserves the right, and you authorize us, to use and transfer all information regarding Site uses by you and all information provided by you in any manner consistent with our Privacy Policy.
22. Copyrights Infringement
22.1 Infringement Notices. GotPhoto respects the intellectual property rights of others. GotPhoto follows the notice and takedown procedures in the Digital Millennium Copyright Act ("DMCA"). If you believe content located on or linked to by the Site violates your copyright, please immediately notify us by emailing us a DMCA takedown notice ("Infringement Notice"), providing the information described below. If GotPhoto takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party who made the content available at the most recent email address that party provided to us. Under the DMCA, you may be held liable for damages based on material misrepresentations in your Infringement Notice. You must also make a good-faith evaluation of whether the use of your content is a fair use; fair uses are not infringing. If you are not sure if content located on or linked to by the Website infringes your copyright, you should first contact an attorney.
22.2 Contents of Infringement Notices. The DMCA requires that all Infringement Notices must include the following: (a) a signature, electronic or physical, of the copyright owner or a person authorized to act on their behalf; (b) an identification of the copyright claimed to have been infringed; (c) a description of the nature and location of the material that you claim to infringe your copyright, in sufficient detail to permit GotPhoto to find and positively identify that material; (d) your name, address, telephone number, and email address; and (e) a statement by you: (i) that you believe in good faith that the use of the material that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner's agent; and, (ii) under penalty of perjury, that all of the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on their behalf.
22.3 Point of Contact. Infringement Notices should be sent to
support@nextgenphotosolutions.com with the subject line "DMCA Notice". GotPhoto will respond to all DMCA-compliant Infringement Notices, including, as required or appropriate, by removing the offending material or disabling all links to the offending material.
23. Dispute Resolution
23.1 Choice of Law; Venue for any Judicial Proceeding. These Terms, including without limitation these Term’s interpretation, shall be treated as though these Terms were executed and performed in the State of New York, and shall be governed by and construed in accordance with the laws of New York without regard to its conflict of law principles. The language in these Terms shall be interpreted in accordance with its fair meaning and not strictly for or against either party. Without waiving and subject to the arbitration agreement below, the proper venue for any judicial action arising out of, relating to, or in connection with these Terms will be the state and federal courts located in or nearest to New York, New York (a “Court of Competent Jurisdiction”). The parties stipulate to, and agree to waive any objection to, the personal jurisdiction and venue of such courts, and further expressly submit to extraterritorial service of process.
23.2 Binding Arbitration. If the Customer and GotPhoto cannot resolve a dispute or other claim through negotiations, the dispute or claim shall be finally and exclusively resolved by binding arbitration. This arbitration agreement is reciprocal, and any election to arbitrate by one party shall be final and binding on the other(s). The language in these Terms shall be interpreted in accordance with its fair meaning and not strictly for or against either party. The Federal Arbitration Act governs the interpretation and enforcement of this agreement to arbitrate.
The arbitration shall be commenced and conducted through JAMS (www.jamsadr.com) under the Streamlined Rules, as modified by this agreement to arbitrate. All remedies available to the parties under applicable federal, state or local laws shall remain available in arbitration. The parties shall each participate in the selection of a neutral arbitrator pursuant to the Streamlined Rules. Unless the Customer and GotPhoto agree otherwise in writing, the final arbitration hearing shall take place in person at the JAMS facility located in or nearest to the Customer’s city of residence. If the Customer initiates arbitration against GotPhoto, the Customer will be required to pay an initial fee of $250. If GotPhoto initiates arbitration against the Customer, GotPhoto shall pay all costs required by it of JAMS to initiate the arbitration. All other arbitration costs (including any remaining JAMS Case Management Fee and all professional fees for the arbitrator’s services) shall be paid as determined by the arbitrator. If JAMS is unavailable to arbitrate a dispute or claim, the Customer and GotPhoto agree to arbitrate using an alternative arbitral forum. Regardless of the outcome of the arbitration, the Customer and GotPhoto will each pay their own attorneys’ fees and costs unless an award of attorneys’ fees is available under applicable statute. The arbitrator’s award will consist of a written statement stating the disposition of each Claim. The award will also provide a concise written statement of the essential findings and conclusions on which the award is based. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Either party may litigate in a Court of Competent Jurisdiction to compel arbitration, to stay proceedings pending arbitration, or to modify, confirm, vacate, or enter judgment on the award entered by the arbitrator.
The Customer acknowledges that agreeing to arbitration is an important business decision that will lead to resolving disputes that would otherwise be resolved in a court of law. The agreement to binding arbitration will preclude the Customer from suing GotPhoto in court with a jury trial. GotPhoto advises the Customer to consult with counsel as the information provided in this section is not intended to contain a complete explanation of the consequences of arbitration.
23.3 Restrictions Against Joinder of Claims. The Customer and GotPhoto agree that any arbitration shall be limited to each Claim individually. The Customer and GotPhoto agree that each may only bring claims against the other in Customer’s or GotPhoto’s individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. If this specific provision is found to be unenforceable in a Court of Competent Jurisdiction, the Claim will still be finally and exclusively resolved by binding arbitration upon the election of either party, and any election to arbitrate by one party shall be final and binding on the other(s). In addition: (1) no arbitration shall be joined with any other arbitration, and (2) there is no right for any Claim to be arbitrated on a class-action basis or to employ class action procedures.
The Customer acknowledges that without this provision, the Customer would have the right to participate in class actions.
23.4 Right to Opt-Out. The Customer may wish to opt-out of the binding arbitration provision. To opt-out the Customer must notify GotPhoto within 30 days of accepting these Terms in writing of the Customer’s intention to opt-out of the arbitration provision by providing the Customer’s name and a clear statement of the Customer’s intent to opt-out, such as “I wish to opt-out of the arbitration provision in section 23.2 and 23.3 of the General Terms and Conditions of Use” or words to that effect. The written intent to opt-out should be addressed by electronic mail with the subject line “Opt-out from arbitration provision” to support@nextgenphotosolutions.com.
24. Severability
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.
HOW TO CONTACT US:
GotPhoto, Inc.
433 Broadway
New York, NY 10013
support@nextgenphotosolutions.com