Workflow Internet Master Services Agreement
Workflow Internet Master Services Agreement
Last Revision: January 2025
This is a legally binding agreement between Captura, LLC, formerly ImageQuix, LLC, a South Carolina corporation (“Captura,” “we,” “our,” or “us”), and you (“Photographer,” “you,” or “your”), and it is effective as of the date of your acceptance of this agreement as provided below.
THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS INTERNET MASTER SERVICES AGREEMENT, YOU ARE ENTERING INTO, AND ARE DEEMED TO HAVE ACCEPTED, WITHOUT RESERVATION AND IN ITS TOTALITY, THIS INTERNET MASTER SERVICES AGREEMENT (THIS “AGREEMENT”) AND YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “PHOTOGRAPHER,” “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT CLICK A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR EXECUTE AN ORDER FORM, AND YOU MAY NOT USE NOR CONTINUE TO USE THE SERVICES.
You may not access or use the Services if you are our direct competitor, except with prior written consent from our CEO. In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
1) ENGAGEMENT OF SERVICES:
Subject to the terms and conditions of this Agreement, Captura agrees to publish those images submitted by Photographer to the Captura website (“Work Product”) with the Photographer’s intention of generating online orders where payments are processed through the Captura website. During the term of this Agreement Captura will offer Photographer’s customers certain online services, including, but not limited to, the ability to preview, compare, order, and print orders (collectively, “Services”), at prices that are set by the Photographer using Captura software. All pricing, fees, collections and disbursements made in respect of this Agreement and transactions related hereto shall be in US Dollars. Photographer acknowledges and hereby agrees that online services may be varied by Captura from time to time without notice.
Photographer shall have orders sent to the lab of their choice for print processing and fulfillment. Captura shall not, in any way, be liable for the quality and delivery of the ordered prints. Photographer agrees that in the event of any type of dispute with the chosen lab, it shall be Photographer’s sole responsibility to resolve said dispute and that Captura shall not be responsible, in any way, for the lab’s actions or failure to properly fulfill any orders or otherwise provide satisfactory services or prints. Photographer will be responsible for all payments to any and all such labs and any claims by Photographer’s customers.
Photographer shall immediately notify Captura of returns, refunds, or fee disputes. Photographer also agrees to promptly notify Captura of shipments, price changes, and any other information relevant to any part of the Work Product. All notifications and submissions pertaining to this Agreement will be made by using the Captura software or in accordance with the provisions of Paragraph 13 (Notices).
Photographer agrees to abide by the provisions of this Agreement as well as the Privacy Statement, both of which are posted on the Captura website. Photographer acknowledges and agrees that this Agreement and Privacy Statement may be amended from time to time by Captura by posting an updated version to the Captura website. Any changes will apply to you upon the next renewal of your subscription to the Services. Continued use of the Services following such renewal date constitutes your acceptance of the then-current version of this Agreement and the Privacy Statement as posted on the Captura website.
In addition, Photographer hereby acknowledges that Services provided hereunder may include services provided and/or performed by a payment processor such as Stripe. Such services shall be subject to the Stripe Connected Account Agreement available at https://stripe.com/connect-account/legal.
Photographer hereby expressly agrees to and shall comply with the terms of the Stripe Connected Account Agreement. Photographer hereby consents to Captura using information about or relating to your account with Stripe, including by sharing such information with Stripe, in order to provide the Services.
2) PHOTO POSTING COMPENSATION:
Captura offers multiple annual memberships for its Services. Your initial sign up with Captura includes a 30 day free Trial Membership. After the initial 30 day free Trial Membership, you may become a member by choosing to purchase a Standard Membership or your account will automatically be canceled. All Membership purchases are final. No refunds, including full or partial refunds, will be made for any reason once a Membership is purchased or auto-deducted from your Captura order processing account.
Pricing for special or discounted Membership offerings may vary and is subject to change by Captura without notice.
3) ORDER PROCESSING COMPENSATION:
As compensation for the Services offered hereunder, Captura shall retain fees from the total amount of the sale per order. An order is defined as any number of items purchased by the same buyer in a single transaction. The total amount of the sale includes the item price(s), any handling charges, any shipping costs collected, sales tax and any other applicable fees or commissions. Fees will be calculated based on total amount of the sale per order and will include a merchant credit card processing rate of 3.1% and an order processing commission rate of 10.0%. A merchant transaction fee of $0.35 will also be applied to each online order for Standard Memberships. Account details may be viewed online through Captura Workflow, formerly Blueprint, software preferences.
Premium Memberships are offered on a case-by-case basis and are based on separately specified metrics, such as annual online order volume, and are subject to agreement to the Premium Membership Enhanced Services Addendum (“ESA”) to this Agreement, as separately executed.
After deduction of all fees from the total amount of the sale , Captura’s payment processor shall pay the Photographer the balance of each order (“Net Sales”), (i.e., total amount of sale minus Captura commission, merchant credit card processing, transaction and other fees (“Service Fees”)), and such Service Fees will be transmitted to Captura by the payment processor. Additional fees may apply, including lab fees and download fees as explained below. When jobs are uploaded with price sheets that contain products from Captura lab partner catalogs, lab fees such as printing and shipping may be deducted automatically from the order, based on the lab associated to that job. Orders with additional services such as Digital Downloads or, 1Touch automated retouching services, are subject to additional fees as set forth at Captura.io/pricing/standard which shall also be deducted from your Account on a monthly basis.
The Net Sales will be paid to the Photographer daily by direct deposit. New accounts have a fraud prevention waiting period estimate of 5-7 days after the first successful payment is received before becoming eligible for the first payout. Once eligible, payment to the Photographer will happen every business day, excluding holidays, and will include all available payments processed two business days prior (US) or the previous week (Canada). Detailed reporting of payment history may be viewed through the Captura software or through a Stripe Connected Account.
You may opt for the “Instant Payment” option (US Debit Card holders only), which will deposit all of your outstanding funds into your connected account within a few hours. Note this service comes with a 1.5% fee of the amount transferred. Due to IRS Laws, instant payouts cannot exceed $9,999.00.
Any merchant chargebacks requested by the Photographer or Photographer’s customer are the sole responsibility of the Photographer and will be deducted from the available funds in merchant account. Upon a chargeback request, Captura/ Stripe will automatically deduct the full chargeback amount plus a $15.00 Chargeback Fee from the Photographer’s account to hold until the chargeback is processed. If sufficient funds are not available to satisfy the chargeback and Chargeback Fee, Captura will debit Photographer’s connected bank account for the balance due.
If a chargeback occurs, our system will automatically submit evidence on Photographer’s behalf to your customer’s bank/credit card company including a copy of the order invoice. Once Captura receives notification from your customer’s bank that charges were accepted by your customers and the chargeback was reversed, Captura will credit the total order amount, plus the Chargeback Fee, to your account.
For partial refunds, Photographer will be credited back the proportional fees (ie a 50% refund would be a 50% refund on all fees).
Photographer shall be solely responsible for and shall timely pay all sales, use, excise, or similar taxes applicable to each order, and Captura will not pay any such taxes on Photographer’s behalf.
Captura shall not, in any way, be liable for any discrepancies between taxes collected on orders and taxes owed by Photographer. Photographer hereby indemnifies, defends, and holds harmless Captura from and against any and all such taxes, penalties, interest, surcharges, and related liabilities, judgments, costs and expenses, including reasonable attorneys’ fees, resulting from or in connection with Photographer’s failure to timely pay in full all such taxes as and when same become due.
4) LICENSE AND OWNERSHIP OF WORK PRODUCT:
Photographer represents and warrants to Captura that Photographer is the sole and exclusive owner of all rights, title and interest, including copyrights, in each item of Work Product. Except as expressly provided in this Agreement, Captura shall not have or obtain any right to or ownership interest in Work Product.
Photographer grants to Captura a perpetual, non-exclusive, paid-up, royalty free license to reproduce, publicly display, perform, distribute and prepare derivative works of each item of Work Product, including all copyrights, moral rights and other intellectual property rights associated with each such image. Any revocation or termination of this license by Photographer, in whole or in part, may only be made concurrent with termination of this Agreement made in compliance with Paragraph 10 and in accordance with the provisions of Paragraph 13.
5) COVENANTS, REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION:
Photographer acknowledges that it may, from time to time, obtain information, opinions, statements and advice from Captura personnel as a part of Photographer’s selection and customization of the Services for use by its customer, and Photographer covenants and agrees that any decisions or choices by, and any act or failure to act on the part of, the Photographer shall be in the Photographer’s sole and exclusive discretion and judgment after due investigation and consideration, without regard to any such information, opinions, statements or advice. Photographer further covenants and agrees that it shall have the sole and exclusive responsibility and liability for fully and properly testing the Services to be provided to its customers, and that it will ensure such Services, including Photographer Work Product, inputs and information, are displayed and function correctly and completely prior to publishing.
Photographer represents, warrants, covenants and agrees the following:
Photographer has the right and unrestricted ability to grant the license provided in Paragraph 4 to Captura;
No part or item of the Work Product will infringe upon any copyright, right of publicity or privacy, or any other personal, proprietary or intellectual property right of any person, whether contractual or in accordance with statutory or common law; c) Photographer will be solely responsible for any decision made or action taken by it using or in connection with the Captura website or Services, including in connection with planning, developing or operating its storefront or pricing, functionality or components thereof; d) Photographer will fully test and ensure desired operation and functionality of all aspects of Photographer’s storefront prior to publishing for customer access and use; e) Photographer will secure “prior express written consent” as defined and set forth in the Telephone Consumer Protection Act (“TCPA”) as required to send any notifications or other communications to any e-mail addresses and/or telephone numbers provided to Captura; and f) Photographer will at all times comply with the Stripe Connected Account Agreement.
Without limitation of the foregoing, Photographer additionally represents and warrants the following:
(1) Photographer has and will comply with all laws applicable to the collection, storage, use, and/or transmission of biometric information or data in connection with all biometric information or data stored on Captura’s systems or software, including the Services; (2) Prior to collecting, storing, using and/or transmitting biometric information or data, and prior to submitting, or causing the collection or submission of, such biometric information or data to Captura’s systems or software, including the Services, Photographer has provided each individual to whom such biometric information or data relates a copy of the Captura Biometric Information Privacy Policy and has obtained such individual’s written consent as required by law; and (3) Photographer is solely responsible for ensuring that all features and functionality that Photographer utilizes that enables or relies on the collection or use of biometric information or data comply with all applicable law.
Photographer hereby indemnifies, defends and holds harmless Captura from any and all damages, costs, claims, expenses or other liabilities, including reasonable attorneys’ fees, arising from or relating to Photographer’s breach or alleged breach of the representations and warranties set forth in Sections 4 and 5 hereof. Captura is not responsible for any errors or omissions in the information contained in this website, or for the results obtained from the use of any information contained herein. All information in this website is provided “as is”, with no guarantee of availability, accessibility, completeness, accuracy, timeliness, or of the results obtained from the use of this information.
Captura HEREBY EXPRESSLY DISCLAIM ALL, AND PHOTOGRAPHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO, WARRANTIES, GUARANTEES, CONDITIONS, COVENANTS OR REPRESENTATIONS BY Captura, EXPRESS OR IMPLIED (IN LAW OR IN FACT), WHETHER ORAL OR WRITTEN, ARISING UNDER LAW, IN EQUITY, BY CUSTOM OF USAGE OR TRADE, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. Captura ALSO MAKES NO REPRESENTATIONS, WARRANTIES, GUARANTEES, CONDITIONS OR COVENANTS OF ANY TYPE WITH RESPECT TO THE ACCESSIBILITY OR AVAILABILITY OF THE WEBSITE OR THE SERVICES TO ANY USER.
6) LIMITATION OF LIABILITY:
WITH THE EXCEPTION OF PHOTOGRAPHER’S LIABILITY PURSUANT TO SECTIONS 3, 5, 8 AND 11 HEREOF, NEITHER Captura, NOR PHOTOGRAPHER SHALL BE LIABLE TO EACH OTHER OR ANY THIRD PARTY FOR INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OF ANY KIND, ANY DAMAGE OR INJURY TO BUSINESS EARNINGS, SAVINGS OR GOODWILL SUFFERED BY ANY PERSON ARISING FROM THIS AGREEMENT, CLAIMS BY THIRD PARTIES, BUSINESS INTERRUPTION, OR OTHER PECUNIARY LOSS WHETHER ARISING FROM BREACH OF WARRANTY OR CONDITION, OR BASED ON CONTRACT, TORT, RELIANCE, FUNDAMENTAL BREACH, STATUTE, COMMON LAW OR OTHER THEORY, OR THE TERMINATION OF THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Captura SHALL NOT BE LIABLE TO ANY PARTY (INCLUDING THIRD PARTIES) FOR ANY DAMAGES OF ANY KIND WHATSOEVER, INCLUDING CONSEQUENTIAL DAMAGES, ARISING FROM ANY USE OF OR INABILITY TO USE THIS WEBSITE, OR ANY INFORMATION PROVIDED HEREIN, OR DECISION MADE OR ACTION TAKEN IN RELIANCE UPON SUCH INFORMATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITH THE EXCEPTION OF PHOTOGRAPHER’S LIABILITY PURSUANT TO SECTIONS 3, 5, 8 AND 11 HEREOF, IN NO CASE SHALL ANY PARTY TO THIS AGREEMENT BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS PAID BY OR ON BEHALF OF PHOTOGRAPHER UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
7) INDEPENDENT CONTRACTOR RELATIONSHIP:
Photographer’s relationship with Captura is that of an independent contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Photographer shall be deemed the seller of any products or services available to its customer through the Captura website as a result of Photographer’s submission of Work Product, including reprints. Photographer is not entitled to any benefits which Captura may make available to its employees, including, but not limited to, group health or life insurance, profit-sharing or retirement benefits. Photographer is not authorized to make any representation, contract or commitment on behalf of Captura unless specifically requested or authorized in writing by an authorized Captura officer. Photographer is solely responsible for timely filing all tax returns and making any required payments to any Federal, State or local tax authority for performance of services and receipt of fees under this Agreement. Photographer shall be solely liable for any failure to pay all applicable taxes. Captura shall not be required to withhold any part of Photographer’s compensation for the payment of any Social Security, Federal, State or any other employee payroll taxes. Photographer is solely responsible for maintaining adequate records of expenses incurred while performing services under this Agreement.
8) CONFIDENTIAL INFORMATION:
Photographer agrees to hold Captura’s Confidential Information in strict confidence, and not to disclose such Confidential Information to any third parties. Confidential Information, as used in this Agreement, shall mean all information that Captura may disclose to Photographer that derives economic value, actual or potential, from not being generally known in Captura’s trade or industry, and is the subject of efforts that are reasonable under the circumstances to maintain their secrecy.
Confidential Information includes, but is not limited to, the following: a) Concepts and ideas relating to the development and distribution of content in any medium or to current, future and proposed products or services of Captura, its subsidiaries or affiliates; b) Trade secrets, drawings, inventions, know-how, software programs, and software source documents; c) Information regarding plans for research, development, new service offerings or products, marketing and selling, business plans, business forecasts, budgets and unpublished financial statements, licenses and distribution arrangements, prices and costs, suppliers and customers; d) Business discussions, negotiations or agreements between the parties; e) Any information regarding the skills and compensation of employees, contractors or other agents of Captura or its respective subsidiaries or affiliates. f) Proprietary or confidential information of any third party who may disclose such information to Captura or Photographer in the course of Captura’s business.
Photographer’s obligations, as set forth herein, shall not apply to any portion of the Confidential Information that Photographer can show, by competent proof, was: a) in the public domain at the time Captura communicated it to Photographer; b) in the public domain, through no fault of Photographer, subsequent to the time the information is communicated to Photographer; c) in Photographer’s possession, free of any obligation of confidence at the time the information communicated to Photographer; d) rightfully communicated to Photographer, free of any obligation of confidence, subsequent to the time the information was communicated to Photographer; e) developed by Photographer’s employees or agents, independently of and without reference to, any information that Captura communicated to Photographer; or if communicated by Captura to an unaffiliated third party, free of any obligation of confidence. Photographer may disclose Captura’s Confidential Information in response to a valid Court Order or as required by another governmental body or by law; provided Photographer shall provide prompt notice to Captura of such Order to enable Captura to seek a protective order or otherwise prevent or restrict such disclosure. All Confidential Information furnished to Photographer is the sole and exclusive property of Captura, its suppliers or customers. Upon request by Captura, Photographer shall promptly surrender originals and any copies of Confidential Information.
Confidential Information shall survive for 3 years beyond the termination or expiration of this Agreement; provided, however, that in the event that any information described as Confidential Information is a Trade Secret as defined by the South Carolina Trade Secrets Act, such information shall be considered to be a Trade Secret and not Confidential Information hereunder, and Photographer shall be under the obligation to maintain confidentiality as described herein for so long as such information remains a trade secret.
Photographer acknowledges that a breach or threatened breach by Photographer of any of its obligations under any part of this Paragraph 8 would give rise to irreparable harm to the other parties for which monetary damages would not be an adequate remedy and hereby agrees that in the event of a breach or a threatened breach by Photographer of any such obligations, each of the other parties hereto shall, in addition to any and all other rights and remedies that may be available to them in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond or other security).
Captura may obtain, store, manipulate, use and share aggregated information about our users and their transactions with third parties, and information that does not identify any individual, without restriction.
9) DATA STORAGE DURABILITY:
Captura makes a reasonable effort to provide a durable storage infrastructure so that objects are stored redundantly across multiple facilities within a region (objects are image files or any type of data). Although our storage is intended to be reliable, to ensure the safety and security of your images you should maintain the original (or a copy of similar quality and resolution) of each object you upload to Captura on a separate system, network or on equipment you elect. You are responsible for maintaining each of your objects independently of Captura. Captura will not be responsible for the loss of any objects under any circumstances.
Shopping Cart Only Members:
All jobs/ data that have orders within 24 months will be stored in our active database and are accessible. Jobs/Data that do not have any activity within 24 months are eligible for archiving.
We will never delete images and data for active Captura customers – instead, we will be archiving images in long term storage.
Smart Workflow Members:
Yearly active storage is covered in your annual software license and images will not be archived into long term storage.
Expired Memberships:
Data to be retained/ deleted at Captura discretion.
10) TERM AND TERMINATION:
Term: The initial term of this Agreement is for one (1) year from date of your acceptance unless terminated earlier as provided herein. Thereafter, this Agreement SHALL AUTOMATICALLY RENEW, ON ITS ANNIVERSARY DATE, FOR ADDITIONAL ONE (1) YEAR TERMS unless either Captura or Photographer provides written notice to the other party, which notice is received by the other party at least sixty (60) days prior to any such anniversary date, that the Agreement shall not renew. Said notice shall be made in accordance with the provisions of Paragraph 13.
Termination by Captura: Captura may terminate this Agreement, with or without cause, at any time upon fifteen (15) days’ written notice to Photographer. Said notice shall be made in accordance with the provisions of Paragraph 13 (Notices). Without limiting the first sentence of this clause 10.2, if termination is based upon an event of default or breach, the Agreement will terminate if such default or breach is not remedied within the 15 day notice period. Captura may also terminate this Agreement immediately without providing prior notice and without providing any right to cure upon Photographer’s material breach of Paragraph 8 (Confidential Information) or Paragraph 11 (Privacy, Decency and DMCA).
Survival: Paragraphs of this Agreement which by their nature are intended to survive the termination, cancellation, completion, or expiration of the Agreement shall continue as valid and enforceable obligations of the parties notwithstanding any such termination, cancellation, completion, or expiration.
11) PRIVACY, DECENCY AND DMCA:
Photographer shall not upload, post, transmit, or submit to the Captura web site any item or material that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, lewd, obscene, libelous, invasive of another’s privacy, hateful, racially or ethnically offensive, or sexually explicit. In addition, Photographer shall ensure that it has provided all required notice, and obtained all required consent, from individuals with respect to all personal information submitted to Captura or the Services, including but not limited to proving appropriate notice and obtaining appropriate consent prior to collecting or processing, or causing Captura to collect or process on behalf of Photographer in connection with the Services, any biometric data or information. Captura shall have the right, but not the duty, to monitor and remove any Work Product or other content on the Captura web site, and Captura shall be the sole judge of decency and appropriateness, and has the sole discretion to refuse to publish, reject or remove, any Work Product or other content. Photographer acknowledges that employees, contractors or other agents of Captura may access, store and transfer any item or material, including without limitation personal information, outside the country in which Photographer or Photographer’s customers reside, such as in the United States or other countries listed in the Privacy Statement, as may be amended from time to time. Photographer agrees that it shall be solely responsible to comply with all applicable laws, including privacy laws, and provide any notices and obtain any authorizations or consents required to enable Captura to lawfully access, store or transfer items or materials to another jurisdiction, and that Captura shall not be responsible, in any way, for Photographer’s inaction or failure to comply with applicable laws or obtain such authorizations in connection thereto. Photographer hereby indemnifies, defends and holds harmless Captura from any and all damages, costs, claims, expenses or other liability, including reasonable attorneys’ fees, arising from or relating to Photographer’s breach or alleged breach of this Paragraph.
It is the policy of Captura to promptly process and investigate notices of alleged copyright infringement, and take appropriate actions under the Digital Millennium Copyright Act, 17 USC o 512 (“DMCA”). The DMCA requires that all notices of alleged copyright infringement must be in writing. When informing the designated agent of an alleged copyright infringement, the complainant must:
Identify the copyrighted work that allegedly has been infringed. If multiple copyrighted works at a single online site are involved, please provide a list of the works on that site.
Describe the material that is claimed to be infringing and provide sufficient information to permit Captura to locate that material.
Provide your contact information, including an address, telephone number, and, if available, an e- mail address.
Certify or include a statement that the complainant has a good faith belief that the use of the copyright-protected material in the manner complained of is not authorized by the copyright owner, the owner’s agent, or law.
Certify that the information that you have provided Captura is accurate. The complainant should attest under penalty of perjury that s/he is authorized to enforce the copyrights that allegedly have been infringed.
Include a physical or electronic signature of the copyright owner or person authorized to act on behalf of the owner.
Notice, Takedown, and Restore Procedure: Captura expects all users of its system to comply with applicable copyright laws. However, if Captura is notified of a claimed copyright infringement, or otherwise becomes aware of facts and circumstances from which infringement is apparent, it will respond appropriately, which may include removing or disabling access to the material that is claimed to be infringing. Captura will follow the procedures outlined in the Digital Millennium Copyright Act with regard to appropriate notifications of the user and the complaining party, acceptance of counter notifications, and, where indicated, “putback” of the alleged infringing material. Refer to the United States Copyright Office for the provisions of the DMCA at http://www.loc.gov/copyright/legislation/dmca.pdf.
Repeat Infringers: Where it has been clearly established that a Captura client is a repeat offender, Captura may terminate that person’s account.
Notification Agent: Pursuant to the DMCA, Captura has designated an agent to receive notification of alleged copyright infringement occurring on Web pages or computer servers. If you believe that your copyrighted work is being infringed on an Captura site, please notify our designated agent, preferably by email, at:
Website Notification Administrator copyright@Captura.io
919-355-4001
12) RIGHTS OF SUCCESSORS AND ASSIGNS:
Photographer may not subcontract or otherwise delegate its obligations under this Agreement without Captura’s prior written consent. Subject to the foregoing, this Agreement will be for the benefit of Captura’s successors and assigns, and will be binding on Photographer’s assignees.
13) Notices:
Any notices or demands shall be in writing and shall be made via email to the address set forth below :
If to Captura:
If to Photographer:
To the active address as stated on the Photographer’s Captura account.
Such notice or demand shall be deemed to have been made when deposited, postage prepaid, in the United States mail or by national or internationally recognized overnight delivery service. The above addresses may be changed at any time by giving thirty (30) days prior written notice as provided herein.
14) GOVERNING LAW:
This Agreement and any dispute arising hereunder shall be construed and enforced in accordance with the substantive and procedural laws of the State of South Carolina without regard to the conflicts of law principles of any jurisdiction.
15) SUBMISSION TO JURISDICTION:
Any legal suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of State of South Carolina in each case located in the City of Greenville and County of Greenville, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by certified mail to such party’s address as set forth in Paragraph 13 herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
16) NON-DISPARAGEMENT:
Neither party shall make any disparaging written or oral statements about the other party in an attempt to persuade customers of the other party to discontinue or curtail their relationship with the other party, to discontinue or forgo entering into any business or service relationship with the other party, or to otherwise terminate their association with the other party.
17) SEVERABILITY:
The provisions of this Agreement are intended to be severable, so that if any of them are held to be illegal or void by a Court of competent jurisdiction, the remainder of said provisions shall remain in full force and effect.
18) WAIVER:
The failure of Captura to insist on strict performance of any of the agreements, terms, covenants and conditions hereof shall not operate, be construed, or be deemed a waiver of any rights or remedies that Captura may have for any subsequent breach, default or non-performance and the right of Captura to insist on strict performance of this Agreement shall not be affected by any previous waiver or course of dealing.
19) REMEDIES CUMULATIVE:
The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
20) INTERPRETATION:
For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to sections, schedules and exhibits mean the sections of, and schedules and exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated under that statute or successor legislation. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The schedules and exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
21) ENTIRE AGREEMENT:
This Agreement and all documents and URL links referred to herein constitute the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings or agreements of the parties. This Agreement may not be contradicted by evidence of any prior or contemporaneous statements or agreements. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation, understanding, agreement, or commitment outside those expressly set forth herein. Captura may amend this Agreement as set forth herein.
22) PRIVACY STATEMENT:
The Services are provided by Captura under this Agreement subject to Photographer’s consent to and compliance with Captura Policies and Procedures, including Captura’s Privacy Statement. By accessing or using the Services, Photographer will be deemed to have, and does hereby agree to, consent to Captura’s Privacy Statement and to the Captura Biometric Information Privacy Policy.