Cheezoo Terms of Use
Last Updated: September 19, 2024
These CHEEZOO TERMS OF USE (“Terms of Use” or “Agreement”) is an agreement between you (“you” or “User”) and Cheezoo Photographers Edits LLC d/b/a Cheezoo (“Cheezoo,” “we”, or “us”),governing (1) your access to and use of Cheezoo’s services (“Services”). Part 1 of this Agreement (the Services bring together photographers that use smart phone cameras and users of photographic services); and (2) use of and access to the Cheezoo website (cheezoo.com, (the “Site”), Part 2 of this Agreement by clicking “accept” on the Site or using the Services, you agree to be bound by this Agreement and you agree that the “Terms of Use” means Parts 1 and 2 of this Agreement and Cheezoo’s privacy policy (cheezoo.com/privacy-policy). Capitalized words and phrases are defined as set forth herein.
PART 1 OF THE TERMS OF USE; YOUR USE OF THE SERVICES
1. ACCOUNTS
1.1 REGISTRATION
You must register for an account (“Account”) to access and use our Services. Registered users are “Users”, and unregistered users are “Site Visitors”. Your Account registration is subject to approval by Cheezoo. We reserve the right to decline a registration either to join Cheezoo or to add an Account of any type.
1.3 PROFILE
To register for an Account to use our Services, you must complete a user profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, to be shown to the public. You agree to provide accurate and complete information on your Profile and on all registration and other forms you access while using our Services or provide to us and you agree to keep that information current. You agree not to provide any false or misleading information about your identity or location, your skills, your services, and you agree to correct any information that is or becomes false or misleading. We reserve the right to suspend or terminate the Account, or access to our Services, of anyone who provides false, inaccurate, or incomplete information in creating, marketing, or maintaining a Profile or an Account.
1.4 DIFFERENT ACCOUNTS
We offer several different Account types, see below (“Account Types”). Once you register for your Account (only one per User), you can add other Account Types under the same username and password.
1.4.1 CLIENT ACCOUNT ,
You can register for an Account or to use the Services as a Client (a “Client Account”). Client Account Types have a feature that allows the account owner to give permissions to other Users (e.g., a coordinator, wedding planner or consultant; collectively “Team Members”) to act on behalf of the Client Account. Each Team Member must have their own Account to be added as a Team Member on the Client Account.
1.4.2 PHOTOGRAPHER ACCOUNT
You can register for an Account or add an Account Type to use the Services as a Photographer (a “Photographer Account”).
1.5 ACCOUNT PERMISSIONS
By granting other Users permissions under your Account as a Team Member, you represent that: (a) the User is authorized to act on your behalf; and (b) you are fully responsible and liable for what the User does and does not do, including with respect to making payments and entering into Service Contracts and the Terms of Use. If any User granted permissions under your Account violates the Terms of Use, it may affect your ability to use our Services. When an Account is closed, Cheezoo may close any related Accounts as well.
1.6 IDENTITY
When you register for an Account, your Account will be subject to verification, including but not limited to validation against third-party databases or government or legal documents that confirm your identity and your location. You authorize Cheezoo, to make any inquiries necessary to validate your identity, your location, and confirm your email address. When requested, you must timely provide us with complete information about yourself and cooperating with other reasonable requests to verify your identity. Subject to legal requirements and limitations, Cheezo shall be permitted to perform a background check on each Photographer prior to the Photographer using the Services.
1.7 USERNAMES; PASSWORDS
Each person who uses our Services must register for their own Account with a username and password. You are responsible for safeguarding and maintaining the confidentiality of your username and password, and agree not to share your username or password with anyone. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to your password. You further agree not to use the Account or log in with the username and password of another User.
2. THE Cheezoo SERVICES
The Site is a marketplace where Clients and Photographers can identify each other and advertise, buy, and sell Photographer Services online. Cheezoo provides the Services to Users, including hosting and maintaining the Site and facilitating the formation of Service Contracts. When a User enters a Service Contract, the User agrees to use the Services exclusively to invoice, receive, and pay any amounts owed under the Service Contract.
The Site enables Users to find one another, enter into service relationships and agreements, receive and provide Photographer services, and make and receive payments. Cheezoo neither performs nor employs individuals to perform Photographer Services. You acknowledge and agree that Cheezoo does not supervise, direct, control, or monitor Users in the performance of any contractual obligations they may have under a Service Contract and agree that: (a) Cheezoo is not responsible for ensuring the accuracy or legality of any User Content, for which Users are solely responsible; (b) Cheezoo is not responsible for the offering or performance of Photographer Services, (c) Cheezoo does not make any representations about or guarantee any User’s services, and (d) nothing will create an employment, agency, or joint venture relationship between Cheezoo and any User offering services.
You further agree that Users, and not Cheezoo, are solely responsible for (a) evaluating and determining the suitability of any Project, Client, or Photographer; (b) assessing whether to enter into a Service Contract with another User and for verifying any information about another User, including Composite Information; (c) deciding whether to enter into a Service Contract as well as the contract terms, and (d) negotiating, agreeing to, and executing any terms or conditions of the contracts and for performing and monitoring performance under them. All Service Contracts between Users are directly between the Users and Cheezoo is not a party to those contracts.
2.1 TAXES
Photographer is solely responsible for: (a) all tax liability associated with payments received from Photographer’s Clients and through Cheezoo, and that Cheezoo will not withhold any taxes from payments to Photographer unless required to under law; (b) obtaining any liability, health, workers’ compensation, unemployment, or other insurance needed or required by law, and that Photographer is not covered by any insurance from Cheezoo; and (c) determining and fulfilling Photographer’s obligations under applicable laws and regulations with respect to invoicing and reporting, collecting, or remitting any applicable taxes or charges In the event of an audit of Cheezoo, Photographer agrees to promptly cooperate with Cheezoo and provide copies of Photographer’s tax returns and other documents as may be reasonably requested for purposes of such audit.
2.2 FEEDBACK
You agree that Users may publish and request Cheezoo to publish on their behalf information on the Site such as feedback, composite feedback, or geographical location. Such information is based on data that Photographers or Clients voluntarily submit to Cheezoo and does not constitute an introduction, endorsement, or recommendation by Cheezoo. You agree that Cheezoo is not responsible for verifying such information and provides it solely for the convenience of Users. Providing false or misleading information violates this Agreement and may result in termination of your use the Site Services.
You and agree that Cheezoo may make available to other Users individual and composite feedback about Users. You agree that any feedback results for you, and other User Content highlighted by Cheezoo on the Site or otherwise (“Composite Information”), may include User comments, User ratings, indicators of User satisfaction, and other feedback left by other Users. Cheezoo is not responsible for monitoring, contributing to or censoring these opinions. You agree to notify Cheezoo of any error or inaccurate statement in your feedback results, including the Composite Information, and you agree that Cheezoo may rely on the accuracy of such information. Cheezoo provides its feedback system as a means for Users to share their working experiences with and opinions of other Users publicly, and you acknowledge and agree that posted feedback and any other Composite Information relates only to the business advertised in the Profile and not to any individual person.
You agree that we are not responsible for User Content. We cannot always prevent the misuse of our Services, and you agree that we are not responsible for any such misuse. Cheezoo reserves the right (but is under no obligation) to remove posted feedback or information that Cheezoo determines violates the Terms of Use or negatively affects our marketplace, diminishes the integrity of the feedback system.
3. CLIENT AND PHOTOGRAPHER
3.1 SERVICE CONTRACTS
If a Client and a Photographer decide to enter into a Service Contract, the contract is a contractual relationship between the Client and the Photographer; Cheezoo is not responsible for and is not a party to any Service Contract and under no circumstances will any such contract create an employment or any service relationship between Cheezoo and any User. With respect to any Service Contract, Clients and Photographers may enter into any agreements that they deem appropriate, provided that those agreements do not conflict with, narrow, or expand Cheezoo’s rights and obligations under the Terms of Use. The parties to a Service Contract can add additional Service terms, in addition to or instead of other such agreements (“Additional Terms”). The parties to such Additional Terms expressly agree that the Additional Terms do apply to their contract to the extent that those Additional Terms do not conflict with the Services Contract. Users are solely responsible for deciding whether to use Additional Terms, and we do not assume any responsibility for using the Additional Terms.
3.2 CANCELLATION POLICY
If Client cancels the Photographer Services set forth in a Service Contract for an event less than seven days before the date that such services were to be performed (as set forth in the applicable Service Contract), Client authorizes Cheezoo to charge Client a cancellation fee of fifty percent (50%) of the Photographer Fees set forth in such Service Contract by use of the Payment Method provided by Client to Cheezoo (the “Event Cancellation Fee”).
If Client cancels the Photographer Services set forth in a Service Contract for a portrait less than two days before the date that such services were to be performed (as set forth in the applicable Service Contract), Client authorizes Cheezoo to charge Client a cancellation fee of fifty percent (50%) of the Photographer Fees set forth in the applicable Service Contract by use of the Payment Method provided by Client to Cheezoo (the “Portrait Cancellation Fee”).
Cheezoo shall retain ten percent (10%) of the Event Cancellation Fee and Portrait Cancellation Fee; the remaining ninety percent (90%) of such cancellation fees shall be paid by Cheezoo to the Photographer upon Cheezoo’s collection of such cancellation fees.
3.3 USER DISPUTES
For disputes arising between Clients and Photographers, You may pursue your dispute independently, but you acknowledge and agree that Cheezoo will not and is not obligated to provide any dispute resolution assistance.
3.4 CONFIDENTIAL INFORMATION
Users may agree to any terms they deem appropriate with respect to confidentiality. If Users do not agree to their own confidentiality terms, this Section 3.3 applies. To the extent a User provides Confidential Information to another User, the recipient will take reasonable steps to keep that information confidential. On a User’s written request, the party that received Confidential Information will promptly destroy or return the disclosing party’s Confidential Information and any copies of it contained in or on its premises, systems, or any other equipment otherwise under its control. Users specifically agree that this Section 3.3 applies to information exchanged for purposes relating to evaluating whether to enter into a Service Contract, even if such contract is never agreed to.
4. WORKER CLASSIFICATION
Cheezoo is not responsible for worker classification as between Client and Photographer, and nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between Cheezoo and a User.
5. Cheezoo FEES
5.1 FEES FOR PHOTOGRAPHERS
Service Fees. Photographers agree to pay Cheezoo a service fee for the use of the Services (including, but not limited to, a monthly subscription fee and an editing fee), as set forth at cheezoo.com/be-a-photographer (the “Service Fees”).
Other Fees. In addition to the above Services Fees, Cheezoo, as further compensation for the Services, shall deduct as additional Service Fees fifteen percent (15%) from all payments made by Client to the Photographer pursuant to this Agreement. In addition, subject to the approvals in the second paragraph of Section 14.9 below and certain payments made to the Photographer as set forth therein, Cheezoo shall retain all proceeds from the sale of Merchandise (as that term is defined in Section 14.9 below).
When a Client pays a Photographer for a Project or when funds related to a Project are otherwise released to a Photographer as required by Section 6.1 below and/or Section 14.9 below, Cheezoo will credit the Photographer account for the full amount paid or released by the Client, and then subtract the Services Fee. Photographer hereby irrevocably authorizes and instructs Cheezoo to deduct the Service Fees from the Photographer account.
Disbursement Fees. Photographers will pay Cheezoo a disbursement fee for remitting payments to their preferred payment method. This fee is paid to Cheezoo in consideration of administrative costs and costs incurred via the disbursement method, and may vary by disbursement method. The fee for each disbursement method is listed on the Site at cheezoo.com/be-a-photographer and is subject to change.
5.2 CLIENT FEES
Clients buying Photographic Services shall pay Cheezoo a monthly fee for accessing the Services (or providing access to the Work Product to others), to edit or print Work Product and for administration and facilitation of payments related to the Photographer Fees they pay to Photographers they engage through the Site, as described at cheezoo.com/find-a-photographer.
5.3 TAXES
Cheezoo Fees are exclusive of taxes. Cheezoo may be required by applicable law to collect certain sales or use Any amounts Cheezoo is required to collect or withhold for the payment of any such taxes shall be collected in addition to the fees owed to Cheezoo under the Terms of Use.
6. PAYMENT TERMS
6.1 ACCOUNT SERVICES
Cheezoo provides services to Users to deliver, hold, and receive payment for a Project, and to pay fees to Cheezoo .
6.1.1 ACCOUNT INSTRUCTIONS
Cheezoo will use and release funds deposited in an Account only in accordance with this Agreement and the applicable Account Instructions. Cheezoo is only obligated to perform those duties expressly described in this Agreement and any applicable Account Instructions. Cheezoo will release funds from any Account in reliance on your authorization, this Agreement, and the applicable Account Instructions.
6.1.2 ACCOUNTS
Cheezoo will use and release funds deposited in an Account only in accordance with this Agreement. After entering into a Service Contract, the first time a Client makes a payment for a Project, Cheezoo will establish and maintain a “Client Account” to hold funds for the Client to use to make payments for Projects, to receive refunds in connection with Projects, and to make payments to Cheezoo.
6.1.3 NO INTEREST
You agree that you will not receive interest or other earnings on the funds held in your Account. Cheezoo may charge or deduct fees, may receive a reduction in fees or expenses charged, and may receive other compensation in connection with the services we provide as provided in Section 5 and the Fee.
6.1.5 Cheezoo ACCOUNT DUTIES
We have no liability under, and no duty to inquire as to, the provisions of any agreement, other than as set forth this Agreement. We will be under no duty to inquire about or investigate any agreement or communication between Client and Photographer, even if posted to the Site. We have the right to rely upon, and will not be liable for relying on, any written notice, instruction, or request furnished to us by Client or Photographer in accordance with this Agreement. We have no duty to inquire about or investigate the validity, accuracy, or content of any such notice, instruction, or request. We may execute any of our powers and perform any of our duties under this Agreement or through agents to be selected and retained by us. If we are uncertain as to our duties or rights under this Agreement or receive instructions, claims, or demands from any party to this Agreement that, in our opinion, conflict with any of the provisions of this Agreement, we will be entitled to refrain from taking any action, and our sole obligation will be to keep safely all property held in the Account until we are directed otherwise in writing by Client and Photographer or by a final order or judgment of a court of competent jurisdiction.
6.1.6 RIGHTS REGARDING ACCOUNTS
We have the right to institute legal proceedings if applicable in order to resolve any dispute between Client and Photographer related to the Account. Except as expressly provided, nothing in this Agreement will be construed to limit our legal and equitable rights.
6.2 CLIENT PAYMENTS
Photographer will invoice Client for Photographer Fees through Cheezoo, and Client will pay invoices consistent with the Account Instructions. When Client approves an invoice, Client automatically and irrevocably authorizes and instructs Cheezoo to charge Client’s Payment Method for the Photographer Fees. Client acknowledges and agrees that failure by Client to decline or dispute an invoice or request for payment is an authorization and instruction to release payment, as described more fully in the applicable Account Instructions.
6.3 DISBURSEMENTS TO PHOTOGRAPHERS
Cheezoo disburses funds that are available in the applicable Photographer Account and payable to a Photographer as described in the relevant Account Instructions. A Photographer can request disbursement of available funds any time on a one-time basis or by setting up an automatic disbursement schedule. Except as provided in the following paragraph, Cheezoo will automatically disburse available funds no more than thirty (30) days after the Photographer Fees are released to the Photographer Account, unless the amount in the Account is less than the Minimum Threshold. For purposes of the Terms of Use, a “Minimum Threshold” is $50.00. Except as provided in the following paragraph, when the funds in the Photographer Account are below the Minimum Threshold, the automatic disbursement schedule is paused and the available and payable funds are released on the earlier of: (i) Photographer’s request; (ii) on the first scheduled automatic disbursement occurring after the amount exceeds the Minimum Threshold; or (iii) 180 days after the funds are available in the Photographer Account.
Except as expressly provided in the Terms of Use or the Account Instructions and as prohibited by applicable law, Cheezoo may refuse to process, may hold the disbursement of the Photographer Fees or any other amounts and offset amounts owed to us, or take such other actions with respect to the Account as we deem appropriate in our sole discretion if: (a) we require additional information, such as Photographer’s tax information, government-issued identification or other proof of identity, address, or date of birth; (b) we have reason to believe the Photographer Fees may be subject to dispute or chargeback; (c) we suspect a User has committed or attempted to commit fraud or other illicit acts on or through the Site or is using the Site unlawfully; or (d) we deem it necessary in connection with any investigation, required by applicable law, or necessary due to circumstances outside of our control after a commercially reasonable effort has been made by us due to such circumstances. If, after investigation, we determine that the hold on the disbursement of the Photographer Fees is no longer necessary, Cheezoo will release the hold as soon as practicable.
In addition, except as expressly provided in the Terms of Use or the Account Instructions and to the extent permitted by applicable law, we reserve the right to seek reimbursement from you, and you will reimburse us, if we: (i) suspect fraud or criminal activity associated with your payment, withdrawal, or Project; (ii) discover erroneous or duplicate transactions; or (iii) have supplied our services in accordance with this Agreement yet we receive any chargeback from the Payment Method used by you or your Client despite our provision of the Services in accordance with this Agreement. You agree that we have the right to obtain such reimbursement by instructing Cheezoo to charge your account(s), offset any amounts determined to be owing, deduct amounts from future payments or withdrawals, charge your Payment Method, or use other lawful means to obtain reimbursement from you. If we are unable to obtain such reimbursement, we may, in addition to any other remedies available under applicable law, temporarily or permanently revoke your access to the Services and close your Account.
6.4 NON-PAYMENT; DEFAULT
If Client is in “default”, meaning the Client fails to pay the Photographer Fees or any other amounts when due under the Terms of Use, or a written agreement for payment terms incorporating the Terms of Use (signed by an authorized representative of Cheezoo), Cheezoo will be entitled to the remedies described in this Section 6.4 in addition to such other remedies that may be available under applicable law or in such written agreement. Client will be deemed to be in default on the earliest occurrence of any of the following: (a) Client fails to pay the Photographer Fees when due; (b) Client fails to pay a balance that is due or to bring, within a reasonable period of time but no more than 30 days after accrual of the charge, an account current after a credit or debit card is declined or expires; (c) Client fails to pay an invoice issued to the Client by Cheezoo within the time period agreed or, if no period is agreed, within 30 days; (d) Client initiates a chargeback with a bank or other financial institution resulting in a charge made by Cheezoo for Photographer Fees or such other amount due being reversed to the Client; or (e) Client takes other actions or fails to take any action that results in a negative or past-due balance on the Client’s account.
If Client is in default, we may, without notice, temporarily or permanently close Client’s Account and revoke Client’s access to the Services, including Client’s authority to use the Site to process any additional payments, enter into Service Contracts, or obtain any additional Photographer Services from other Users through the Site. However, Client will remain responsible for any amounts that accrue on any open Projects at the time a limitation is put on the Client’s Account as a result of the default. Without limiting other available remedies, Client must pay Cheezoo upon demand for any amounts owed, plus interest on the outstanding amount at the lesser of one and one percent (1%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law.
At our discretion and to the extent permitted by applicable law, Cheezoo may, without notice, charge all or a portion of any amount that is owed to any Payment Method on file on the Client’s Account; set off amounts due against other amounts received from Client or held for Client by Cheezoo; make appropriate reports to credit reporting agencies and law enforcement authorities; and cooperate with credit reporting agencies and law enforcement authorities in any investigation or prosecution.
Cheezoo does not guarantee that Client is able to pay or will pay Photographer Fees, and Cheezoo is not liable for and may reverse Photographer Fees if Client is in default or initiates a chargeback of funds with their financial institution. Photographer may use the dispute process as described in the Account Instructions in order to recover funds from Client in the event of a default or may pursue such other remedies against Client as Photographer chooses. If Cheezoo recovers funds from a Client who initiated a chargeback or who is in default pursuant to this Section 6.4, Cheezoo will disburse any portion attributable to Photographer Fees to the applicable Photographer to the extent not already paid by Client.
6.5 NO RETURN OF FUNDS; NO CHARGEBACKS
Client acknowledges and agrees that Cheezoo may charge or debit Client’s designated Payment Method for the Photographer Fees incurred. Once Cheezoo charges or debits the Client’s designated Payment Method for the Photographer Fees, the charge or debit is non-refundable, except as otherwise required by applicable law. Client also acknowledges and agrees that the Terms of Use provide a dispute resolution process as a way for Client to resolve disputes. To the extent permitted by applicable law, Client therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Photographer Fees or other fees charged pursuant to the Terms of Use for any reason. A chargeback in breach of this obligation is a material breach of the Terms of Use. If Client initiates a chargeback in violation of this Agreement, Client agrees that Cheezoo may dispute or appeal the chargeback, institute collection action against Client, close Client’s account, and take such other action it deems appropriate.
6.6 PAYMENT METHODS
In order to use certain Site Services, Client must provide account information for at least one valid Payment Method. Client hereby authorizes Cheezoo to run credit card authorizations on all credit cards provided by Client, to store credit card and banking or other financial details as Client’s method of payment and to charge Client’s credit card (or any other Payment Method) for the Photographer Fees and any other amounts owed under the Terms of Use. You acknowledge and agree that we may use certain third-party vendors and service providers to process payments and manage your Payment Method information.
By providing Payment Method information through the Site or by authorizing payments with the Payment Method, Client represents that: (a) Client is legally authorized to provide such information; (b) Client is legally authorized to make payments using the Payment Method(s); (c) if Client is an employee or agent of a company or person that owns the Payment Method, that Client is authorized by the company or person to use the Payment Method to make payments on Cheezoo; and (d) such actions do not violate the terms and conditions applicable to Client’s use of such Payment Method(s) or applicable law.
Cheezoo is not liable to any User if Cheezoo does not complete a transaction as a result of any limit by applicable law or your financial institution, or if a financial institution fails to honor any credit or debit to or from an account associated with such Payment Method. Cheezoo will make commercially reasonable efforts to work with any such affected Users to resolve such transactions in a manner consistent with this Agreement and any applicable Instructions.
7. NON-CIRCUMVENTION
You acknowledge and agree that a substantial portion of the compensation Cheezoo receives for making the Site available to you is collected through the Service Fee described in Section 5.1 and that in exchange a substantial value to you is the relationships you make with other Users identified through the Services (the “Cheezoo Relationship”). Cheezoo only receives the Service Fee when a Client and a Photographer pay and receive payment through the Site. Therefore, , for 24 months from the start of a relationship with Cheezoo (the “Non-Circumvention Period”), you agree to use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that person or arising from that relationship and not to circumvent the Payment Methods. If you did not identify and were not identified by another person through the Site, such as if you and another User worked together before meeting on the Site, then the Non-Circumvention Period does not apply.
You agree to notify Cheezoo immediately if a person suggests making or receiving payments other than through the Site in violation of this Section 7 or if you receive unsolicited contact outside of the Site. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to support@cheezoo.com. You agree that a violation of this Section 7 is a material breach of the Terms of Use and may result in your Account being permanently suspended. This Section still applies if you choose to cease using the Site.
8. RECORDS
You are solely responsible for creation, storage, and backup of your business records. You agree that Cheezoo has no obligation to store, maintain or provide you a copy of any content or information that you provide, except to the extent required by applicable law.
9. LIMITED WARRANTY
Cheezoo makes no representation or warranty about the Services, including that the Services will be uninterrupted or error-free, and Cheezoo shall provide the Services on an “as is” and “as available” basis. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Cheezoo DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY
Cheezoo is not liable for any damages or losses arising out of or in connection with this Agreement, including, but not limited to: (i) your use of or your inability to use our Services; (ii) delays or disruptions in our Services; (iii) glitches, bugs, errors, or inaccuracies of any kind in our Services; (iv) the content, actions, or inactions of third parties’ use of the Site or Site Services; (v) a suspension or other action taken with respect to your Account; (vi) your reliance on the quality, accuracy, or reliability of, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information; (vii) your loss of or inability to do business, as a result of changes to the Terms of Use; (viii) any claim of personal injury, death, damage to property (real and intangible) related in any manner to your use or furtherance of the Services; and (ix) you or your agents’ failure to comply with any applicable laws, including, but not limited to, any laws related to discrimination, sexual harassment, taxation or criminal activities Additionally, in no event will Cheezoo, or our third-party service providers, be liable for any consequential, incidental, or indirect costs or damages, including, but not limited to, loss of data or profit. The liability of Cheezoo, and our third-party service providers, to any User for any claim arising out of or in connection with this Agreement will not exceed any fees retained by Cheezoo with respect to Service Contracts on which User was involved as Client or Photographer during the six-month period preceding the date of the claim. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
11. INDEMNIFICATION
You will indemnify, defend, and hold harmless Cheezoo, and our directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims (defined below) and Indemnified Liabilities (defined below) relating to or arising out of: (a) your or your agents’ use of the Services, including any payment obligations or default incurred through use of the Services; (b) any Work Product or User Content related to your use of the Services; (c) any Service Contract entered into by you or your agents; (d) your or your agents’ failure to comply with the this Agreement; (e) you or your agents’ failure to comply with any applicable law, including, but not limited to, any laws related to discrimination, sexual harassment, taxation or criminal activities; (f) your negligence, willful misconduct, or fraud by you or your agents; and (g) any claim of personal injury, death, damage to property (real and intangible) or claims related to in any manner to your use or furtherance of the Services; and (g) you or your agents’ violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights. “Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including attorneys’ fees) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party “Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other User.
12. AGREEMENT TERM AND TERMINATION
12.1 TERMINATION
Unless both you and Cheezoo expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion at any time, without explanation, upon written notice to the other, except as otherwise provided in this Agreement. You may provide written notice to support@cheezoo.com. In the event you properly terminate this Agreement, your right to use the Services is automatically revoked, and your Account will be closed.
You agree that Cheezoo is not a party to any Service Contract between Users. Consequently, you understand and acknowledge that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any Service Contract entered into between Users. If you attempt to terminate this Agreement while having one or more open Projects, you agree (a) you hereby instruct Cheezoo will close any open contracts; (b) you will continue to be bound by this Agreement and the other Terms of Use until all such Projects have closed on the Site and your access to the Site has been terminated; (c) Cheezoo will continue to perform those Services necessary to complete any open transaction between you and another User; and (d) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open Service Contracts, whichever is later, to Cheezoo for any Services or such other amounts owed under the Terms of Use and to any Photographers for any Photographer Services.
Without limiting Cheezoo’s other rights or remedies, we may revoke or limit access to the Services, deny your registration, or revoke your access to the Site and refuse to provide any or all Services to you if: (i) you breach any terms and conditions of this Agreement or any portion of the Terms of Use; (ii) we have reasonable reason to believe that you have provided false or misleading information to us; (iii) we conclude that your actions may cause legal liability for you or others; may be contrary to the interests of the Site or the User community; or may involve illicit or illegal activity; or (iv) we are required to by law, legal process, or law enforcement. If your Account is temporarily or permanently closed, you may not use the Site under the same Account or a different Account or re-register for a new Account without Cheezoo’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of Users’ Account status to all Users, including you and other Users who have entered into Service Contracts with you. You therefore agree that: if Cheezoo decides to temporarily or permanently close your account, Cheezoo has the right (but no obligation) where allowed by law to: (y) notify other users that have entered into Service Contracts with you of your closed account status, and (z) provide those users with a summary of the reasons for your account closure. You agree that Cheezoo will have no liability arising from or relating to any notice that it may or may not provide to any user regarding closed account status or the reason(s) for the closure.
12.2 ACCOUNT DATA
Except as otherwise required by law, if your Account is closed, you will no longer have access to information or material you kept on the Site and any content stored in your Account may be deleted, for which Cheezoo expressly disclaims liability. Cheezoo may retain some or all of your Account information as permitted or required by law and the Privacy Policy.
12.3 SURVIVAL
After this Agreement terminates, the terms of this Agreement and the other Terms of Use that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions related to audits, intellectual property, non-circumvention, indemnification, fees, reimbursements, and limitations of liability each contemplate performance or observance after this Agreement terminates. The termination of this Agreement for any reason will not release you or Cheezoo from any obligations incurred prior to termination of this Agreement or other parts of the Terms of Use or that may accrue related to any act or omission prior to such termination.
13. DISPUTES BETWEEN YOU AND Cheezoo
13.1 DISPUTE PROCESS
All disputes or claims related to this Agreement shall be resolved in the federal or state courts in Hamilton County, Tennessee. THE PARTIES ARE EXPRESSLY GIVING UP ANY AND ALL RIGHTS TO A JURY TRIAL.
13.2 CHOICE OF LAW
This Agreement and any Claim will be governed by and construed in accordance with the laws of the State of Tennessee, without regard to its conflict of law provisions.
13.3 CLASS AND COLLECTIVE WAIVER
Both you and Cheezoo agree to bring any dispute on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or determined on a class or collective action, or as a member in any such class or collective proceeding.
14. GENERAL
14.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Use, is the only agreement between you and us regarding the Services and supersedes all prior agreements for the Services and supersedes any prior agreements between us for actions occurring after the effective date of this Agreement.
14.2 MODIFICATIONS; WAIVER
Cheezoo may amend this Agreement and any of the other agreements that comprise the Terms of Use at any time by posting a revised version on the Site. Cheezoo will provide reasonable advance notice of any amendment that includes a Substantial Change (defined below), by posting the updated Terms of Use on the Site and providing notice on the Site or by email. If the Substantial Change includes an increase to Fees charged by Cheezoo, Cheezoo will provide at least 30 days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in Fees, any temporary or promotional Fee change, or changes that do not constitute a Substantial Change. Any revisions to the Terms of Use will take effect on the noted effective date. No modification or amendment to the Terms of Use will be binding upon Cheezoo unless they are agreed in a written instrument signed by a duly authorized representative of Cheezoo or posted on the Site by Cheezoo. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
14.3 ASSIGNABILITY
No assignments are valid without Cheezoo’s prior written consent. Any other attempted transfer or assignment will be null and void.
14.4 SEVERABILITY; INTERPRETATION
If any provision of this Agreement is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
14.5 FORCE MAJEURE
The parties to this Agreement will not be responsible for any delay or failure to perform any obligation under this Agreement for a reasonable period due to epidemics, quarantines, labor disturbances, accidents, fires, floods, pandemics, telecommunications or Internet failures, strikes, wars, riots, rebellions, terrorism, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar event beyond the parties’ reasonable control.
14.8 ELECTRONIC RECORDS
Cheezoo may need to provide you with certain communications, notices, agreements, statements or disclosures in writing regarding our Services. You consent to receive these records electronically from Cheezoo rather than in paper form.
14.9 Ownership and Rights to Work Product.
Upon Cheezoo’s receipt of all related Client payments for Services, and subject to the non-circumvention provisions in Section 7, the Work Product produced by the Photographer shall be owned by the Photographer and may not be reproduced by Client or Cheezoo except as set forth herein or as agreed to by Cheezoo and the Photographer in writing. Notwithstanding the above ownership rights, Cheezoo shall: (a) have the right to use the Work Product to provide the Services; and (b) an irrevocable, unrestricted royalty free, world right and license to use, copy, publish and distribute the Work Product for editorial, trade, advertising, educational and any other purpose and in any manner and medium and to alter the same without restriction.
The license set forth in subsection (b) above, in the event that the Client and Photographer approve, shall include Cheezoo’s production, marketing, distribution and the sale of prints and/or related merchandise (e.g., hats, t-shirts, hoodies and phone cases) based on the Work Product created by Photographer for a Client pursuant to this Agreement and offered for sale by Cheezoo (the “Merchandise”). In the event that Cheezoo sells any prints as part of the Merchandise, Cheezoo shall then pay to Photographer fifty percent (50%) of the net sales of said prints (i.e., Merchandise sales price paid to Cheezoo minus sale and use taxes, chargebacks, discounts, credits, cancellations and any shipment or fulfillment costs). The amount to be so paid to Photographer shall be credited to Photographer’s account pursuant to Section 6 above. Except as expressly set forth in this paragraph, Photographer and Client release all claims to sales and profits that may arise from Cheezoo’s sale of such Merchandise.
14.10 In-App Subscription Fees for Photographer and Client
Photographer
In-App Subscription. The Photographer Listing is a monthly subscription which enables the photographer to utilize the various services of the Cheezoo app, including listing in the Search Directory through which potential clients may be able to find the photographer. The monthly subscription is $14.99 USD, and payment of this subscription fee will be charged to the photographer’s iTunes Account or Google Play Account at confirmation of purchase. This subscription automatically renews unless auto-renew is turned off at least 24 hours before the end of the current subscription period. Subscriptions may be managed by the user, and auto-renewal of the subscription may be turned off by going to the user’s Account Settings after purchase. Any unused portion of a free trial period, if offered, will be forfeited when the user purchases a subscription, where applicable.
Client
In-App Subscription. The Gallery Subscription is a monthly subscription which enables the client of the photographer to view the finished images from the session for which they hired their photographer in a gallery format. The Gallery Subscription also enables the client to order physical prints of the images from the session Gallery, as well as download digital copies of the images from the session Gallery. The monthly subscription is $14.99 USD, and payment of this subscription fee will be charged to the client’s iTunes Account or Google Play Account at confirmation of purchase. This subscription will need to be renewed manually by the client/user each month through their Account Settings. The user will be notified of the need to renew their subscription 7 days and then 1 day in advance of the subscription expiration. If the gallery subscription is allowed to expire, the client/user will no longer have access to viewing of the images, or ordering prints of the images. A Gallery Subscription will be necessary for each session for which a client/user is hiring a photographer. Any unused portion of a free trial period, if offered, will be forfeited when the user purchases a subscription, where applicable.
14.11 Promotion of Third Party Businesses and Websites:
No promotion of any businesses or websites other than those owned by Cheezoo will be allowed on the Cheezoo platform. Failure to follow this term will result in a request from Cheezoo to the Cheezoo User to remove said references to the outside business and/or website from their Cheezoo account. If this request is not followed within 48 hours, Cheezoo reserves the right to permanently delete the User’s Cheezoo Account and all data associated with it.
15. DEFINITIONS
Capitalized terms not defined below or above have the meanings described elsewhere in the Terms of Use.
“Account” means Client or Photographer account.
“Account Instructions” means the account instructions relevant to the Service Contract.
“Client” means any authorized User of the Site or Site Services to seek or obtain Photographer Services, including from another User.
“Confidential Information” means any material or information provided to, or created by, a User to evaluate a Project or the suitability of another User for the Project, or provided in connection with a Project, regardless of whether the information is in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Photographer or Client; (b) was lawfully received by User without restriction from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.
“Photographer” means any authorized User of the Site or Site Services that utilizes the Site to advertise, provide, or receive payment for the provision of Photographer Services to Clients, including Agency Member Accounts and Photographer Accounts that are part of Agency Accounts.
“Photographer Fees” means the fee agreed between a Client and a Photographer.
“Photographer Services” means all services performed for or delivered to Clients by Photographers.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, in each case, under the laws of any state, country, territory or other jurisdiction.
“Payment Method” means a valid credit card issued by a bank acceptable to Cheezoo, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as Cheezoo may accept from time to time in our sole discretion.
“Project” means an engagement for Photographer Services that a Photographer provides to a Client under a Service Contract.
Service Contract” means, as applicable, the contractual provisions between a Client and a Photographer governing the Photographer Services to be performed by a Photographer for Client for a Project.
“Substantial Change” means a change to the terms of the Terms of Use that materially reduces your rights or increases your responsibilities.
“Cheezoo Platform” means the online platform accessed using Cheezoo’s downloaded application or other software that enables time tracking and invoicing, chat, and screenshot sharing with other Users.
“User Content” means any comments, remarks, data, feedback, content, text, photographs, images, video, music, or other content or information that you or any Site Visitor or User post to any part of the Site or provide to Cheezoo, including such content or information that is posted as a result of questions.
“Work Product” means any tangible or intangible results or deliverables that Photographer agrees to create for, or actually delivers to, Client as a result of performing the Photographer Services, including, but not limited to, photographs, videos and any intellectual property developed in connection therewith.
PART 2 OF THE CHEEZOO TERMS OF USE; YOUR USE OF THE cheezoo website
This website – cheezoo.com (the “Website”) — is owned and operated by Cheezoo Photographers Edits LLC d/b/a Cheezoo (“CHEEZOO”). PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE WEBSITE. By using this Website, you agree to these terms of use (the “Terms”). If you do not agree to the Terms, do not use the Website. We reserve the right, at our discretion, to change, modify, add or remove portions of the Terms at any time. Please check these terms periodically for changes. Your continued use of the Website following the posting of changes to the Terms will mean you accept those changes. These Terms shall set forth the terms and conditions pursuant to which you can use the Website.
THE WEBSITE
The Website, including but not limited to, all photographs, text, graphics, logos, icons, images, data, graphs, audio, videos, computer programs and other material and information contained on, or utilized in the provision of, the Website is the property of CHEEZOO, its suppliers, customers or users and is protected by copyrights, trademarks, trade secrets, patents or other proprietary rights. CHEEZOO hereby grants you a limited, nonexclusive, non-transferable, personal license to use the Website for personal or informational purposes only. Except as expressly authorized by CHEEZOO in writing, you may not use, copy, distribute, modify or create derivative works from, disclose, display, transmit, or post or any portion of the Website for any purpose or “frame” or “mirror” the Website on any other server or wireless or Internet-based device. All rights not expressly granted herein are reserved to CHEEZOO and/or its licensors.
To use certain features of the Website, to use the services provided by CHEEZOO or to participate in certain activities sponsored by CHEEZOO, we might ask you to register as a participant or user. If so requested, each Website user must: (a) personally provide true, accurate, current and complete information on the Website’s registration form (collectively, the “Registration Data”) and (b) maintain and promptly update the Registration Data as necessary to keep it true, accurate, current and complete. If, after investigation, CHEEZOO has reasonable grounds to suspect that any user’s information is untrue, inaccurate, not current or incomplete, CHEEZOO may suspend or terminate any and all current or future use of the Website or services by that user. A user may receive passwords and account designations upon completing certain Website registration processes and is wholly responsible for maintaining the confidentiality of such passwords or designations.
CONTENT SUBMISSIONS
All information, data, text, software, music, sound, photographs, graphics, video, messages, comments or any other materials whatsoever, whether posted or transmitted to CHEEZOO or the Website, shall be collectively referred to as the “Content.” The submitting user retains ownership of Content. Notwithstanding the user’s ownership, the submitting user grants CHEEZOO the royalty-free, world-wide, perpetual, non-exclusive, transferable license to CHEEZOO to use, reproduce, modify, edit, publish, distribute and display such Content through the Website or those related websites or services hosted or operated by CHEEZOO. CHEEZOO has not, and will not, review, monitor or edit the Content for accuracy, timeliness, integrity or completeness. CHEEZOO shall have the right (but not the obligation) in its sole discretion to refuse, remove or delete any Content that it considers violating the Terms or be otherwise illegal. CHEEZOO, in its sole and absolute discretion, may preserve Content and may also disclose Content to third parties if required to do so by law, judicial or governmental mandate or, to protect the rights, property, or personal safety of Website users and the public.
RULES FOR CONTENT SUBMISSION
We ask you to follow these rules when submitting, posting or sharing Content on the Website: (a) you shall not upload to, distribute through or otherwise publish through the Website any Content that is libelous, defamatory, obscene, pornographic (nudity and/or touching of breasts and/or genitalia), invasive of privacy or publicity rights, abusive, that would constitute or encourage a criminal offense or that would otherwise give rise to liability or violate any law; (b) you shall not use the Website to post Content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual, or that could be harmful to minors or that harasses or advocates harassment of another person; (c) you will use this Website only in a manner consistent with all laws and regulations and in accordance with the Terms; (d) you will not impersonate any person or entity, misrepresent any affiliation with another person, entity, or association, use false IP addresses or headers, or otherwise conceal your identity from CHEEZOO; (e) you will only submit Content for which you have the copyright or other specific permission to distribute; and (f) you will not violate, plagiarize, or infringe on the rights of third parties including copyright, trademark, trade secret, privacy, publicity or proprietary rights. CHEEZOO shall not be liable in any way for any Content.
Your Content is deemed non-confidential and the CHEEZOO has no obligation to maintain the confidentiality of any information, in whatever form, contained in any such Content, except pursuant to the CHEEZOO privacy policy (cheezoo.com/privacy-policy).
CHEEZOO does not verify, endorse or otherwise vouch for the Content. Content submitted to the Website or CHEEZOO does not represent the views of CHEEZOO, or any individual associated with CHEEZOO, and CHEEZOO does not control this Content. In no event shall you represent or suggest, directly or indirectly, CHEEZOO’s endorsement of your Content. CHEEZOO does not vouch for the accuracy or credibility of any Content and does not take any responsibility or assume any liability for any actions you may take as a result of reading Content on the Website.
USE OF CHEEZOO SERVICES
Use of the mobile, desktop and/or web services made available by CHEEZOO are subject to the terms and conditions of the “CHEEZOO TERMS OF USE” (cheezoo.com/terms-of-use), including additional terms and conditions regarding privacy and use of Content.
USE OF WESITE BY CHILDREN
THIS WEBSITE IS NOT INTENDED FOR USE BY CHILDREN UNDER THE AGE OF 13.
TERMINATION
CHEEZOO may terminate your use of the Website for: (a) breach of these Terms; (b) your abuse of Website resources or attempt to gain unauthorized entry to the Website; or (c) as required by law, regulation, court or governing agency order. CHEEZOO’s termination of any user’s access to the Website may be effected without notice and, on such termination, CHEEZOO may immediately bar any further access to the Website. CHEEZOO shall not be liable to any user or other third party for any termination of that user’s access to the Website. In the event of termination, CHEEZOO reserves the right to delete or save a user’s Content at CHEEZOO’s sole discretion.
LINKS
The Website may provide links to other websites or mobile applications. CHEEZOO exercises no control whatsoever over such other websites and is not responsible or liable for the availability, content, advertising, products or other materials on such websites. Your access and use of such linked websites, including information, material, products and Cheezoo therein, is solely at your own risk.
LIMITED WARRANTY; LIMITATION OF LIABILITY
EACH USER’S USE OF THE WEBSITE IS AT USER’S SOLE RISK. THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CHEEZOO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CHEEZOO SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES RESULTING FROM ANY USER’S USE OR INABILITY TO USE THE WEBSITE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
COPYRIGHTS
CHEEZOO respects the intellectual property rights of others and requires that the people who use the Website do the same. It is our policy to respond promptly to claims of intellectual property misuse. If you believe that your work has been copied and is accessible on this Website in a way that constitutes copyright infringement, you may notify us by providing our copyright agent with the following information in writing: (a) the electronic or physical signature of the owner of the copyright or the person authorized to act on the owner’s behalf; (b) identification of the copyrighted work that you claim has been infringed; (c) identification of the material that is claimed to be infringing and information reasonably sufficient to permit CHEEZOO to locate the material, including, if applicable the full URL; (d) your name, address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
Our designated agent to receive notification of claimed infringement under the Digital Millennium Copyright Act of 1998 is:
John Roberts
New Counsel, PLC
233 Park Avenue, Suite 203
Minneapolis, Minnesota 55415
612-659-8443
jroberts@newcounsel.com
PRIVACY
CHEEZOO agrees to treat your private personally identifiable information in accordance with the terms of our then current privacy policy, which is incorporated herein for all purposes, and which is available for review at cheezoo.com/privacy-policy or by sending an e-mail request to support@cheezoo.com.
GENERAL INFORMATION
The Terms constitute the entire agreement between each user and CHEEZOO and govern each user’s use of the Website, superseding any prior agreements. The Terms and the relationship between each user and CHEEZOO shall be governed by the laws of the State of Tennessee without regard to its conflict of law provisions and each party all submit to the personal and exclusive jurisdiction of the courts located within Hamilton County, Tennessee. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. This Website is controlled and operated by CHEEZOO from within the State of Tennessee, United States of America. CHEEZOO makes no representation that materials on the Website are appropriate or available for use in other locations. Those who choose to access this Website from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. Nothing herein shall be deemed to create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship of any kind between CHEEZOO and any user.