Last Updated: August 10, 2015
BEFORE THE USE OF ANY FOTOR SERVICES, YOU ARE REQUIRED TO READ, UNDERSTAND AND AGREE TO THESE TERMS. YOU MAY ONLY CREATE AN ACCOUNT AFTER READING AND ACCEPTING THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THE CONDITIONS SET FORTH IN THIS DOCUMENT, PLEASE REFRAIN FROM USING OUR PRODUCTS AND SERVICES.
The following Terms govern the contractual relationships between Chengdu Everimaging Science and Technology Co., Ltd. who owns the brand of Fotor (hereinafter "Fotor"), and the natural persons, legal entities and legally responsible partnerships (hereinafter "User", "Users") who access Fotor services (hereinafter "Service"), with or without registration, available at www.fotor.com (hereinafter "Website") , at Apple App Store, at Google Play or at any other App Store.
Fotor reserves the right to modify or discontinue, temporarily or permanently, the Terms of Service in whole or in in part with or without notice at any time. Users agree that Fotor shall not be liable to them or to any third party for any modification, suspension or discontinuance of services. Please also read our Privacy Policy which details how we securely handle your personal information.
Fotor reserves the right to change our Terms of Services, so check back to view our Terms of Services periodically for changes.
1. Service Registration
In order for User to enter the Service, User needs to register for a Fotor account (hereinafter "Fotor account") and provide information which include his / her email address, a user name and a password. User can also register with his / her Facebook profile.
If a User would like to receive License Fee from Fotor Market as a Seller (Photographer), the real name of the natural person, the living or business address, date of birth, PayPal account information, and ID documents (used as support in some necessary cases) may also be required. All data requested during the Service registration process shall be given fully and correctly, provided the request of such data does not contradict any data protection law(s).
The Fotor account is to be secured with a password. User shall take all necessary steps to ensure that the password is kept confidential. User is obliged to notify Fotor by contacting support@fotor.com without any undue delay if there are signs of misuse of his / her Fotor account by any third party. User is not authorized to grant the use of the Fotor account opened in his / her name to any third party.
Fotor has the right to block User´s Fotor account temporarily or permanently if there are reasons for Fotor to believe that User violates these Terms, any third-party rights or any applicable law(s). In the event of permanent blocking or deletion, User is not entitled to open up a new Fotor account or to use any other existing account.
Users have the right to remove their Fotor account or Contents by means described at help.fotor.com. Nevertheless, termination of service or removal of account shall NOT affect any previously granted licenses to Buyers.
Note: For the avoidance of doubt, the grant of a perpetual license as set out in Market Terms that the Content License will remain in full force and effect even if the Content to which the license refers has been removed or deleted from Fotor. Thus, removal/deletion of Content from Fotor does not affect Content Licenses sold prior to such removal/deletion.
2. Content
By using the Fotor's services, users agree that all content, whether publicly posted or privately transmitted, is the sole responsibility of the person who has generated, transmitted, shared or posted the content. This means that users, not Fotor, are entirely responsible for all content at every stage. This includes editing, uploading, posting, sharing, emailing or otherwise transmitting or making available content via any of the services provided. Fotor does not guarantee the storage of content and is not intended as a back-up solution. Users should back-up all content they consider important. Fotor is not responsible for content that is lost or damaged.
BY UPLOADING CONTENTS (E.G. PHOTOS) TO FOTOR MARKET OR BY CHECKING THE OPTION OF SELLING THROUGH FOTOR THE PHOTOS SUBMITTED TO A CONTEST / CHALLENGE, USERS ARE AWARE AND AGREE THAT THE CONTENTS UPLOADED TO FOTOR WILL BE MAKE AVAILABLE IN THE FOTOR MARKET AND ARE POTENTIALLY TO BE SOLD THROUGH FOTOR IN THE FUTURE. SEE FOTOR MARKET TERMS FOR MORE DETAILS.
By using Fotor products or services, users agree that it is prohibited to edit, upload, post, share, email or otherwise transmit or make available any of the following:
· Content that is unlawful, abusive, obscene, pornographic, profane, harmful, threatening, harassing, vulgar, defamatory, libelous, invasive of another's privacy, or hateful racially or ethnically.
· Content that you do not have a right to edit, upload, post, share, email or otherwise transmit or make available according to any law, or due to contractual or fiduciary relationships. This includes inside information or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements.
· Content that could infringe copyright laws or other proprietary or intellectual property rights without the explicit permission of the owner and the persons (or their parents or legal guardians, where applicable) who are shown in the content, if applicable.
· Any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
· Unsolicited or unauthorized advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes", or any other similar forms of solicitation.
You acknowledge that Fotor does not pre-screen content, but that Fotor shall have the right (but not the obligation) to refuse, remove or move any content at their discretion, either permanently or temporarily, because that content violates our codes of conduct or regulations. Users agree to evaluate and bear all risks associated with the use of any services provided by Fotor and are responsible for any content they have edited, uploaded, posted, shared, emailed or otherwise transmitted or made available via any of the services provided, including the safety and accuracy of such content.
3. Conduct
We expect users to use the services provided by Fotor in a lawful and respectful manner. In particular, by using our services users agree not to partake in the following:
· Harass, "stalk" or otherwise harm others, or violate any laws that protect minors in any way.
· Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity, including forging headers or otherwise manipulating identifiers in order to disguise the origin of content.
· Download content posted by another user that you know, or reasonably should know in a manner that is not lawful.
· Without having obtained a proper license, by "right-clicking" or by other technical means, download any content (esp. images) from Fotor that is copyright protected.
· Advertise or offer to sell or buy any goods or services for any business purpose, unless Fotor explicitly allows such messages.
· Interfere with or disrupt the Service or servers or networks connected to Fotor, or disobey any requirements, procedures, policies or regulations of networks connected to the Service.
· Facilitate the sale or use of narcotics, steroids, prescription drugs and devices, tobacco products, certain controlled substances or other products or practices that present a risk to consumer safety.
· Facilitate activities involving the use of ammunition, firearms, knives, or other weapons that are regulated under applicable laws.
· Facilitate activities involving gambling, betting on sporting events, horse or dog racing, or any other activity that indirectly supports gambling.
· Violate any code of conduct or other guidelines which may be applicable for any particular area of the Service, including any applicable local, state, national or international laws, or other regulations with jurisdiction.
4. Copyright
Fotor respects the intellectual property of others, and we ask our users to do the same. Fotor will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Safe Harbor Principles and other applicable intellectual property laws with respect to any alleged or actual infringement. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide our copyright agent with the following information:
· An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest.
· A description of the copyrighted work or other intellectual property that you claim has been infringed.
· A description of where the material in question is located, including details that will assist our staff with locating it on a specific place on the website.
· Your address, telephone number, and email address.
· A statement by you, made under penalty of perjury, that the information provided is accurate, and that you are the copyright or intellectual property owner, or authorized to act on the copyright or intellectual property owner's behalf.
5. Intellectual Property Rights
You acknowledge and agree that the Service and any related software used in connection with Fotor contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by Fotor, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the service or the software of Fotor, in part or in whole. Software, if any, that is made available to download from the Service, excluding software that may be made available by end-users through the Service, is the copyrighted work of Fotor and/or its suppliers. Your use of the Software is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software ("License Agreement"). You may not install or use any software that is accompanied by or includes a license agreement unless you first agree to the License Agreement terms. For any Software not accompanied by a License Agreement, Fotor grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code. It is also prohibited to sell, assign, sublicense, or otherwise transfer any rights to the Software. You agree to not modify the Software in any manner or to use modified versions of the Software, including for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by Fotor for use in accessing the Service. Any rights not expressly granted herein are reserved.
6. Dispute Resolution
You and the company you represent agree, claim or controversy arising out of or relating to this Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Fotor Service(collectively, "Disputes") shall be settled by lawsuits.
You and the company you represent agree that disputes between you and Fotor will be resolved by binding, individual lawsuit and you waive your right to participate in a class action lawsuit.
Unless you and Fotor both otherwise agree, the lawsuit shall be under the jurisdiction of a People's Court in the place where Chengdu Everimaging Science and Technology Co., Ltd. is located. Fotor shall not be liable for any legal fees and/or other costs incurred prior to receiving complete notification of the claim.
Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of the terms set in the Terms of Services.
7. Choice of Law
These Terms are governed by and construed in accordance with the laws of the People's Republic of China, without giving effect to any conflict of law principles.
Fotor Market Terms and General Terms together form the Terms of Services of Fotor.
1. Service description of Fotor Market
The service of Fotor Market gives amateur and professional photographers the opportunity to publicly display, share and sell / buy their photos (hereinafter "Works") by uploading them to the Website through the Fotor application with the option to share them via associated social media services. Users may also follow other Users's profiles, "like" their Works and post comments. The Works and other content (e.g. texts) shared in the Service by User are hereinafter referred to as "Content". Anyone that uploads a photo to Fotor, no matter the purpose of which is for a contest, for a challenge or directly for sale, is hereinafter referred to as a "Seller". Anyone that intends to pay for the use of a photo sold on Fotor is hereinafter referred to as a "Buyer".
Fotor reserves the right to change, interrupt or discontinue the operation of its services provided in the Service at any time. Fotor will notify User of such event in advance, if possible.
2. Requirements for Content
2.1 Copyright
Any Content that User intends to upload to and share in the Service needs to comply with the terms stated in section 2 of the General Terms.
In addition to the terms stated in section 2 of the General Terms, the User should only upload Contents (e.g. photos) that he / she has ownership and copyright for purpose of contest / challenge held by Fotor or for purpose of sale through Fotor Market.
Except as having obtained a license, the Users are not allowed to download copyright protected content from Fotor, either by "right-clicking" or by other technical means.
IMPORTANT:
Please be noted that Fotor does not allow stolen photos to be uploaded. Photos you upload to Fotor MUST be your own and not copied or breaching any form of copyright. Infringement of copyright will expose yourself to severe civil and potentially even criminal penalties.
2.2 Model Release
You need consent from participating individuals or models in your photo before you can sell the photo for commercial use.
The Seller confirms that, through the uploading of Content to Fotor, the Seller has received all required consents from any and all private individuals participating in Content ("Model Releases"). Upon request from Fotor, the Seller undertakes to provide such written and other evidence. Fotor retains the right to request additional Model Releases for any uploaded Content. It's suggested that Sellers refer to the website of American Society of Media Photographers for a template of Model Release (https://asmp.org/tutorials/forms.html). In addition to the Model Release document itself, Fotor requires the Seller to prepare a photo of the Model(s) holding the signed Model Release.
2.3 Property Release, Trademark and other Consents
Apart from the Model Releases detailed above, the Buyer is responsible for obtaining, verifying and validating any other consent required for the Buyer's intended use of the Content, including but not limited to any consents required from trademark owners, building or land owners or owners of other intellectual property included in the Content. The Seller shall not be responsible for obtaining any such consent, unless otherwise agreed in writing directly between the Seller and the Buyer. For the avoidance of doubt, Fotor will not collect property releases and shall not be responsible for obtaining, verifying or validating any such consent, unless otherwise expressly agreed in writing between Fotor and a Buyer.
3. Fotor's Use
3.1 Fotor does not claim ownership of any Content.
3.2 However, by uploading any Content to Fotor Market or by checking the option of selling through Fotor the photos submitted to a contest / challenge held by Fotor, User grants Fotor the non-exclusive, worldwide, royalty-free, sub-licensable right to use the respective Content for the purposes of the Service. This includes the right to integrate the Content on the Website and in Fotor's and its affiliated companies' other websites (hereinafter the "Websites") and advertising material (e.g. for the Fotor Service as well as the Fotor Market). In particular, User grants Fotor the following rights of use:
· The right of reproduction, the right of public accessibility and dissemination, i.e. the right to reproduce the Content indefinitely using every technology available, in particular by means of digital incorporation within the framework of the Websites and the right to make the Content available to the public or publicly reproduce, transmit and to broadcast (in particular via the social media platforms shared by User);
· The right of making available on demand, i.e. the right to store the Content, keep it at hand for the public, to transmit it to any number of persons;
· The right of using the Content for advertising purposes, i.e. the right to reproduce the Content indefinitely for advertising and marketing purposes and to make it available to the public or reproduce publicly for the services offered by Fotor. This right includes the right to change and to process the Content for the purposes mentioned and in particular to combine or integrate it with other pictures, text, graphics, artworks, films, audio and audio-visual media.
· The right of granting to the operators of public search engines permission to use search engines or search spiders to copy Content for the sole purpose of creating publicly available searchable indices of the Content. Each User specifically allows for Fotor to grant access to the Content for such search engines or spiders.
Fotor accepts such granting of rights.
3.3 Fotor is not obliged to indicate User as author and/or originator of User's Works that are shown on the Websites. User insofar waives any applicable rights of copyright notice. In case that User's Works are used apart from the Websites, User will be indicated as the author and/or originator of his Works by stating his / her Fotor User Name next to the Work (copyright notice).
3.4 In case of the removal of a Work from User's Fotor account or the deletion of User's Fotor account by either User or Fotor for whatever reason, Fotor's rights in the respective Work and/or Content shall expire. However, the right to use the Content in advertising material that is already in use and the right to use any Content that User has shared on other Users profiles will remain unaffected. Fotor will use reasonable efforts to make the Contents be removed from the Service and affiliated or partner websites within sixty (60) days of Users' removal of Works or Fotor accounts. However, Users agree that any prior granted licenses will remain in full force and effect. In addition, Users also agree that Fotor will be able to keep at least a thumbnail of any Works that you removed indefinitely.
3.5 Fotor reserves the right to refuse the upload of any Content and to delete or remove any uploaded Content that, at Fotor's sole discretion, violates these Terms, any third-party rights or any applicable law(s) or Content that seems for any other reason unacceptable or inappropriate.
4. Trade Terms
4.1 Pricing by Fotor
By uploading Content to Fotor Market or by checking the option of selling through Fotor the photos submitted to a contest / challenge held by Fotor, the User agrees to have such Content published for sale on Fotor at such terms and prices that Fotor applies from time to time (as further detailed in Fotor website).
Fotor reserves the right at its own discretion to set the Content Fee for all Content Licenses to the Content published on Fotor. Fotor further reserves the right to adjust any such Content Fee upwards or downwards at its own discretion at any time, to run temporary promotional campaigns covering all or some of the Content on Fotor and to create bundles, compilations and portfolios of Content and to set the prices for such campaigns, bundles, etc, at its own discretion.
4.2 Content Licenses, Content Fee and License Fee
For any purchase of Content License, the Buyer agrees to pay the defined price stipulated by Fotor (Content Fee). Unless the Seller and the Buyer both otherwise agree, all licenses are non-exclusive and the Seller always keeps the copyright. No ownership of the Content is transferred.
See separate pages for detailed Content License information up-to-date.
License Fee: Fotor will share 50% (Fifty Percent) of the revenue after all applicable sales taxes to the Seller, each time the Seller's Content License is sold.
4.3 Payment Terms
Payment of the Content Fee is made by the Buyer through the purchase process on Fotor and the payment solution(s) made available thereon by Fotor. As the Contents are digital images, delivered instantly once payment is received and as Fotor has responsibility under the terms of its legally binding business partnership, all payments are final and binding and will not be refunded to a Buyer under any circumstances. Due to the same reason, Fotor does not offer an exchange of the Content after the payment is made.
Upon Fotor's receipt of the Content Fee, the Content will be released to the Buyer for use in accordance with corresponding Content License and the Terms of Services of Fotor.
Seller's share of the License Fee will be shown in and be credited to his / her Fotor account after a sale of license has been validated. If the Seller has opposition or question about the License Fee, he / she shall contact Fotor in writing within 7 calendar days since the credited License Fee is shown in his / her Fotor account.
Seller's share of the License Fee is payable periodically or upon Seller's request. Payments will be operated by the third-party payment platform that Fotor is cooperating with. Provided that some third-party payment platforms charge Sellers a certain amount of transaction fee for cash-out, Fotor shall not afford this transaction fee. Whenever the Seller requests from his / her Fotor account, even after a long period of time, Fotor processes the cash-out without owing the Seller an interest.
Fotor retains the right to provide other solutions for cash-out which in such event will be described on Fotor's web site www.Fotor.com and / or in the Fotor App.
5. Copyright Notice
The Seller is aware and agrees that by granting a Commercial License (e.g. a Standard Commercial License or an Extended Commercial License) under the Terms of Services, the Seller waives all his / her rights to be identified or mentioned as photographer or copyright holder of the Content. Thus, the Buyer shall be free to use the Content in accordance with the Content License without mentioning the Seller. However, the Buyer shall not be entitled to state or otherwise indicate that the Buyer is the copyright holder of the Content, but may merely state that the Buyer uses the Content under license.
If the Buyer is granted an Editorial License (e.g. Standard Editorial License), there must be a copyright notice. Copyright owner and Fotor have to be indicated as the originator and source respectively, by stating the copyright owner's Fotor username under the form of "username / Fotor". When the licensed photo is used in online presentations, the notice must contain an embedded link to Fotor Market.
6. Representations and Warranties
The Seller represents and warrants to the Buyer and to Fotor that the Seller is the original photographer of the Content and that it holds all rights in and to the Content. The Seller further represents and warrants to the Buyer and to Fotor that the Content does not infringe upon any copyright, moral right or other intellectual property right.
OTHER THAN AS EXPRESSLY PROVIDED IN THIS USER AGREEMENT, THE CONTENT IS PROVIDED "AS IS" WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER THE SELLER NOR FOTOR REPRESENTS OR WARRANTS THAT THE CONTENT WILL MEET ANY REQUIREMENTS OF THE BUYER. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT TO ACHIEVE A SPECIFIC RESULT IS WITH THE BUYER.
7. Claims and Disputes between Seller and Buyer
In the event of a breach by the Seller or Buyer of the Terms of Services or in the event of any other claim directed by the Seller towards the Buyer or vice versa, such claims or disputes will need to be handled directly between the Seller and the Buyer.
In the event of such claim or dispute, Fotor may (but has no obligation to) release relevant Registration Data to the relevant party against which the Seller/Buyer has a claim. Each of the Seller and Buyer agrees to the release of such Registration Data if Fotor so decides. Apart from any such release of Registration Data, Fotor shall not be part of any such dispute or have any responsibility in relation thereto and each of the Seller and the Buyer expressly disclaims any responsibility for Fotor in relation thereto.
8. Limitation of Liability for Fotor on Transactions
The Seller and the Buyer recognize that Fotor is merely the provider as a transaction platform enabling Sellers and Buyers to sell/buy Content Licenses. Thus, Fotor is not involved in the transaction between Seller and Buyer and shall under no circumstances be held liable by any Seller or Buyer for any loss or damage arising out of in connection with any transaction made using Fotor.
