QwkPic Terms of Service
September 13, 2016
THIS FOLLOWING USER AGREEMENT DESCRIBES THE TERMS AND CONDITIONS ON WHICH QWKPIC, LLC OFFERS YOU ACCESS TO THE QWKPIC PLATFORM.
These terms of service constitute a legally binding agreement (the “Agreement”) between you (“you,” or “your”) and QwkPic, LLC (“QwkPic,” “we,” “us” or “our”), a California Limited Liability Company, governing your use of the QwkPic application, website, and technology platform (collectively, the “QwkPic Platform”).
The QwkPic Platform provides a marketplace where persons who seek a photographer (“Clients”) can be matched with persons willing to take photographs of them (“Photographers”). Photographers and Clients are collectively referred to herein as “Users” and each User shall create a User account that enables such User to access the QwkPic Platform. For purposes of this Agreement, the photography services provided by Photographers to Clients that are matched through the Platform shall be referred to collectively as the “Services”.
QWKPIC DOES NOT PROVIDE PHOTOGRAPHY SERVICES, AND QWKPIC IS NOT A PHOTOGRAPHER AGENCY OR CARRIER. IT IS UP TO THE PHOTOGRAPHER TO DECIDE WHETHER OR NOT TO OFFER THEIR PHOTOGRAPHY SERVICES TO A CLIENT CONTACTED THROUGH THE QWKPIC PLATFORM, AND IT IS UP TO THE CLIENT TO DECIDE WHETHER OR NOT TO ACCEPT PHOTOGRAPHY SERVICES FROM ANY PHOTOGRAPHER CONTACTED THROUGH THE QWKPIC PLATFORM. ANY DECISION BY A USER TO OFFER OR ACCEPT SERVICES ONCE SUCH USER IS MATCHED THROUGH THE QWKPIC PLATFORM IS A DECISION MADE IN SUCH USER’S SOLE DISCRETION. EACH PHOTOGRAPHY SERVICE PROVIDED BY A PHOTOGRAPHER TO A CLIENT SHALL CONSTITUTE A SEPARATE AGREEMENT BETWEEN SUCH PERSONS.
By creating your User account and using the QwkPic Platform, you expressly acknowledge that you understand this Agreement and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE QWKPIC PLATFORM OR THE SERVICES.
1. Modification to the Agreement
We reserve the right to modify the terms and conditions of this Agreement at any time, effective upon posting the amended terms on this site. If we make changes, we will notify you by, at a minimum, revising the “Last Updated” date at the top of this Agreement. You are responsible for regularly reviewing this Agreement. Continued use of the QwkPic Platform or Services after any such changes shall constitute your consent to such changes. If you do not agree to any such changes you may not use or access the QwkPic Platform or the Services.
The QwkPic Platform is available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the QwkPic Platform is not available to children (persons under the age of 18) or Users who have had their User account temporarily or permanently deactivated, or persons charged with a felony or convicted of a violent misdemeanor. By becoming a User, you represent and warrant under penalty of perjury that you are at least 18 years old, have never been charged with a felony or convicted of a violent misdemeanor, and you have the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement.
As a Client, you agree that any amounts charged following a session (a “Charge”) are mandatory and due and payable immediately upon completion of the photography session. Charges include Session Fees and other applicable fees and taxes plus any tips to the Photographer that you elect to pay. QwkPic has the authority and reserves the right to determine and modify pricing by posting applicable Charges. Charges may vary based on the type of service you request (e.g., QwkPic Lite, QwkPic Pro). You are responsible for all Charges incurred under your User account regardless of your awareness of such Charges or the amounts thereof.
- Session Fees. Session Fees consist of a base price and incremental charges based on the duration and number of photos/videos of your session purchased. For particularly short sessions, minimum Session Fees may apply. Session Fees may be subject to a multiplier at times of high demand of the Services (“Prime Time”) as determined by QwkPic. We will use reasonable efforts to inform you of any Prime Time multipliers in effect at the time you request a photography session.
- Convenience & Trust Fee. QwkPic may assess a per-session “Convenience & Trust Fee” to offset QwkPic’s expenses, including but not limited to those related to promoting trust and safety on the QwkPic platform as well as other operational costs of running the QwkPic Platform. Such expenses are dynamic and may or may not exceed QwkPic’s Convenience & Trust Fee collections in certain markets. Excess Convenience & Trust Fee collections, if any, will be deemed general revenue.
- Cancellation Fee. In the event that you cancel a session request on the QwkPic Platform more than 2 minutes after such request is made, make repeated or frequent cancellations, or fail to show up for your session in a timely manner, you agree to pay a “Cancellation Fee”. We may also assess a Cancellation Fee against you if we suspect that you have intentionally cancelled sessions to disrupt the QwkPic Platform or the provision of Services.
- Damage Fee. If a Photographer reports that you have materially damaged the Photographer’s equipment, you agree to pay a “Damage Fee” of up to $250 depending on the extent of the damage (as determined by QwkPic in its sole discretion), towards equipment repair, replacement or cleaning. QwkPic reserves the right (but is not obligated) to verify or otherwise require documentation of damages prior to processing the Damage Fee.
- Other Charges. Other fees and surcharges may apply to your session, including: actual or anticipated state or local fees, and processing fees for split payments. In addition, where required by law QwkPic will collect applicable taxes. Any tips will be provided entirely to the applicable Photographer.
- Facilitation of Payments. QwkPic uses Braintree, a division of PayPal, Inc. (Braintree) for payment processing services. By using the Braintree payment processing services you agree to the Braintree Payment Services Agreement available at https://www.braintreepayments.com/legal/gateway-agreement, and the applicable bank agreement available at https://www.braintreepayments.com/legal/cea-wells. Charges shall only be made through the QwkPic Platform. Cash payments are strictly prohibited. QwkPic may replace its third-party payment processing services without notice to you.
- No Refunds. Charges are assessed immediately following completion of the session to your authorized payment method. All Charges are non-refundable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of the QwkPic Platform, any disruption to the QwkPic Platform or Services, or any other reason whatsoever.
- Promotions. QwkPic, at its sole discretion, may make available promotions with different features to any of our Users or prospective Users. These promotions, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with QwkPic.
- Credit Card Authorization. Upon addition of a new payment method or each session request, QwkPic may seek authorization of your selected payment method to verify your payment method, ensure the session cost will be covered, and protect against unauthorized behavior. The authorization is not a charge, however, it may reduce your available credit by the authorization amount until your bank’s next processing cycle. Should the amount of our authorization exceed the total funds on deposit in your account, you may be subject to overdraft of NSF charges by the bank issuing your debit or check card. We cannot be held responsible for these charges and are unable to assist you in recovering them from your issuing bank.
As a Photographer, you will receive applicable Session Fees (net of QwkPic’s Administrative Fee, as discussed below) and any tips provided by Customers to you for the Services you provide. QwkPic will process all payments due to you through its third party payments processor. You acknowledge and agree that such amounts shall not include any interest and will be net of any amounts that we are required to withhold by law. You expressly authorize QwkPic to set the prices on your behalf for all Charges that apply to the provision of Services. QwkPic reserves the right to withhold all or a portion of Photography Fees if it believes that you have attempted to defraud or abuse QwkPic or QwkPic’s payment systems.
In exchange for permitting you to offer your Services through the QwkPic Platform and marketplace as a Photographer, you agree to pay QwkPic (and permit QwkPic to retain) a fee based on each transaction in which you provide Services (the “Administrative Fee”) The amount of the applicable Administrative Fee will be communicated to you in an Administrative Fee schedule. QwkPic reserves the right to change the Administrative Fee at any time in QwkPic’s discretion b ased upon local market factors, and QwkPic will provide you with notice in the event of such change. Continued use of the QwkPic Platform after any such change in the Administrative Fee calculation shall constitute your consent to such change.
QwkPic, at its sole discretion, may make available promotions with different features to any Photographers or prospective Photographers. These promotions, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with QwkPic.
4. QwkPic Communications
By becoming a User, you expressly consent and agree to accept and receive communications from us, including via e-mail, text message, calls, and push notifications to the cellular telephone number you provided to us. By consenting to being contacted by QwkPic, you understand and agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of QwkPic, its affiliated companies and/or Photographers, including but not limited to: operational communications concerning your User account or use of the QwkPic Platform or Services, updates concerning new and existing features on the QwkPic Platform, communications concerning promotions run by us or our third party partners, and news concerning QwkPic and industry developments. IF YOU WISH TO OPT-OUT OF PROMOTIONAL EMAILS, TEXT MESSAGES, OR OTHER COMMUNICATIONS, YOU MAY OPT-OUT BY FOLLOWING THE UNSUBSCRIBE OPTIONS PROVIDED TO YOU. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send. You acknowledge that you are not required to consent to receive promotional messages as a condition of using the QwkPic Platform or the Services. In addition, you acknowledge that opting out of receiving all texts may impact your use of the QwkPic Platform or the Services.
5. Your Information
You are solely responsible for your Information and your interactions with other members of the public, and we act only as a passive conduit for your online posting of your Information. You agree to provide and maintain accurate, current and complete information and that we and other members of the public may rely on your Information as accurate, current and complete.
You warrant and represent to us that you are the sole author of your Information. To enable the QwkPic Platform to use your Information, you grant to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right and license to exercise the copyright, publicity, and database rights you have in your Information, and to use, copy, perform, display and distribute such Information to prepare derivative works, or incorporate into other works, such Information, in any media now known or not currently known. QwkPic does not assert any ownership over your Information; rather, as between us and you, subject to the rights granted to us in this Agreement, you retain full ownership of all of your Information and any intellectual property rights or other proprietary rights associated with your Information.
You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any password provided by you or QwkPic for accessing the QwkPic Platform. You are solely and fully responsible for all activities that occur under your User account, and QwkPic expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account or you suspect any other breach of security, you agree to notify us immediately.
6. Social Networking Sites
As part of the functionality of the QwkPic Platform, you may be able to create or login to your User account through online accounts you may have with third party social networking sites (each such account, an "SNS Account") by either providing your SNS Account login information through the QwkPic Platform or allowing QwkPic to access your SNS Account. By granting QwkPic access to any SNS Accounts, you understand that QwkPic may access, make available and store any content that you have provided to and stored in your SNS Account including without limitation any friend, mutual friends, contacts or following/followed lists (the “SNS Content”) so that it is available on and through the QwkPic Platform to other Users. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered to be your Information. Depending on the privacy settings that you have set in such SNS Accounts, personally identifiable information that you post to your SNS Accounts may be available on and through the QwkPic Platform.
7. Restricted Activities
With respect to your use of the QwkPic Platform and your participation in the Services, you agree that you will not:
- impersonate any person or entity;
- stalk, threaten, or otherwise harass any person, or carry any weapons;
- violate any law, statute, ordinance or regulation;
- interfere with or disrupt the Services or the QwkPic Platform or the servers or networks connected to the QwkPic Platform;
- post Information or interact on the QwkPic Platform or Services in a manner which is false, inaccurate, misleading (directly or by omission or failure to update information), defamatory, libelous, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, or illegal;
- use the QwkPic Platform in any way that infringes any third party’s rights, including but not limited to: intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- post, email or otherwise transmit any malicious code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or surreptitiously intercept or expropriate any system, data or personal information;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the QwkPic Platform;
- “frame” or “mirror” any part of the QwkPic Platform, without our prior written authorization or use meta tags or code or other devices containing any reference to us in order to direct any person to any other web site for any purpose; or
- modify, adapt, translate, reverse engineer, decipher, decompile or otherwise disassemble any portion of the QwkPic Platform or any software used on or for the QwkPic Platform;
- rent, lease, lend, sell, redistribute, license or sublicense the QwkPic Platform or access to any portion of the QwkPic Platform;
- use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the QwkPic Platform or its contents;
- create liability for us or cause us to become subject to regulation as a photographer agency or provider of photography services;
- link directly or indirectly to any other web sites;
- transfer or sell your User account, password and/or identification to any other party; or
- cause any third party to engage in the restricted activities above.
We reserve the right, but we have no obligation, to suspend or deactivate your User account if you do not comply with these prohibitions.
8. Photographer Representations and Warranties
By providing Services as a Photographer on the QwkPic Platform, you represent, warrant, and agree that:
- You possess a valid driver’s license or identification and are authorized and medically fit to operate a smartphone or camera to provide photography services and have all appropriate licenses, approvals and authority to provide photography services to customers in all jurisdictions in which you provide Services.
- You own, or have the legal right to use the requisite smartphone or camera you use when providing Services, and such equipment is in good operating condition.
- You will only provide Services using the smartphone and/or camera that has been reported to Us.
- You will not screengrab, capture, save, or store any photographs, pictures, videos or other media taken by, on, or with the QwkPic Platform during a photography session outside of the QwkPic Platform.
- You will not send, share, or disseminate any photographs, pictures, videos or other media taken by, on, or with the QwkPic Platform during a photography session outside of the QwkPic Platform.
- You agree that you relinquish any and all copyrights to the photographs, pictures, videos or other media taken by, on, or with the QwkPic Platform during a photography session.
- You will be solely responsible for any and all liability that results from or is alleged as a result of your provision of Services, including, but not limited to personal injuries, death and property damages.
- You will comply with all applicable laws, rules and regulations while providing Services, and you will be solely responsible for any violations of such provisions.
- You will pay all applicable federal, state and local taxes based on your provision of Services and any payments received by you.
- You will not make any misrepresentation regarding QwkPic, the QwkPic Platform, the Services or your status as a Photographer, or, while providing the Services charge for sessions (except as expressly provided in this Agreement), or engage in any other activity in a manner that is inconsistent with your obligations under this Agreement.
- You will not attempt to defraud QwkPic or Clients in connection with your provision of Services. If we suspect that you have engaged in fraudulent activity we may withhold applicable Session Fees or other payments for the session(s) in question.
- You will not discriminate or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation. You will make reasonable accommodation for service animals.
- You agree that we may obtain information about you, including your criminal records, and you agree to provide any further necessary authorizations to facilitate our access to such records during the term of the Agreement.
9. Proprietary Rights and Trademark License
All intellectual property rights in the QwkPic Platform shall be owned by us absolutely and in their entirety. These rights include and are not limited to database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the QwkPic Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by you to us are non-confidential and shall become the sole property of QwkPic. QwkPic shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
QwkPic, the QwkPic Camera and other QwkPic logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of QwkPic in the United States and/or other countries (collectively, the “QwkPic Marks”). If you provide Services as a Photographer, QwkPic grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the QwkPic Marks solely in connection with providing the Services through the QwkPic Platform (“License”). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without QwkPic’s prior written permission, which it may withhold in its sole discretion. The QwkPic Marks may not be used in any manner that is likely to cause confusion.
You acknowledge that QwkPic is the owner and licensor of the QwkPic Marks, and that your use of the QwkPic Marks will confer no additional interest in or ownership of the QwkPic Marks in you but rather inures to the benefit of QwkPic. You agree to use the QwkPic Marks strictly in accordance with QwkPic’s Trademark Usage Guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that QwkPic determines to nonconforming or otherwise unacceptable.
You agree that you will not:
- create any materials that incorporate the QwkPic Marks or any derivatives of the QwkPic Marks other than as expressly approved by QwkPic in writing;
- use the QwkPic Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the QwkPic Marks other than in accordance with the terms, conditions and restrictions herein;
- take any other action that would jeopardize or impair QwkPic’s rights as owner of the QwkPic Marks or the legality and/or enforceability of the QwkPic Marks, including, without limitation, challenging or opposing QwkPic’s ownership in the QwkPic Marks;
- apply for trademark registration or renewal of trademark registration of any of the QwkPic Marks, any derivative of the QwkPic Marks, any combination of the QwkPic Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the QwkPic Marks;
- use the QwkPic Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
Violation of any provision of this License may result in immediate termination of the License, in QwkPic’s sole discretion. If you create any materials bearing the QwkPic Marks (in violation of this Agreement or otherwise), you agree that upon their creation QwkPic exclusively owns all right, title and interest in and to such materials, including without limitation any modifications to the QwkPic Marks or derivative works based on the QwkPic Marks. You further agree to assign any interest or right you may have in such materials to QwkPic, and to provide information and execute any documents as reasonably requested by QwkPic to enable QwkPic to formalize such assignment.
10. Copyright Complaints
QwkPic respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials on the Services infringe upon your copyrights, please send the following information to QwkPic’s Offices at
4215 Glencoe Ave #403
Marina del Rey, CA 90292
- a description of the copyrighted work that you claim has been infringed, including specific location on the QwkPic Platform where the material you claim is infringed is located. Include enough information to allow QwkPic to locate the material, and explain why you think an infringement has taken place;
- a description of the location where the original or an authorized copy of the copyrighted work exists – for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
- your address, telephone number, and e-mail address;
- 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;
- a statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
- an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
The following disclaimers are made on behalf of QwkPic, our affiliates, and each of our respective officers, directors, employees, agents, shareholders and suppliers.
The QwkPic Platform is provided on an “as is” basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of the QwkPic Platform and/or the Services, including the ability to provide or receive Services at any given location or time.
We specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state.
We do not warrant that your use of the QwkPic Platform or Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error-free, or will meet your requirements, that any defects in the QwkPic Platform will be corrected, or that the QwkPic Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the QwkPic Platform or Services.
We have no control over the quality or safety of the photographer services or photo session that occurs as a result of the Services. We cannot ensure that a Photographer or Client will complete an arranged photography service.
We cannot guarantee that each Client is who he or she claims to be. Please use common sense when using the QwkPic Platform and Services, including looking at the photos of the Photographer or Client you have matched with to make sure it is the same individual you see in person. Please note that there are also risks of dealing with underage persons or people acting under false pretense, and we do not accept responsibility or liability for any content, communication or other use or access of the QwkPic Platform by persons under the age of 18 in violation of this Agreement. We encourage you to communicate directly with each potential Photographer or Client prior to engaging in an arranged photography session.
QwkPic is not responsible for the conduct, whether online or offline, of any User of the QwkPic Platform or Services. You are solely responsible for your interactions with other Users. We do not procure insurance for, nor are we responsible for, personal belongings given to Photographers or Clients. By using the QwkPic Platform and participating in the Services, you agree to accept such risks and agree that QwkPic is not responsible for the acts or omissions of Users on the QwkPic Platform or participating in the Services.
It is possible for others to obtain information about you that you provide, publish or post to or through the QwkPic Platform (including any profile information you provide), send to other Users, or share during the Services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users on the QwkPic Platform or through the Services. Please carefully select the type of information that you post on the QwkPic Platform or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or “hackers”).
Opinions, advice, statements, offers, or other information or content made available through the QwkPic Platform, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted on the QwkPic Platform or otherwise disseminated by third parties. We reserve the right, but we have no obligation, to monitor the materials posted in the public areas of the QwkPic Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
The QwkPic Platform contains (or you may be sent through the QwkPic Platform) links to other websites owned and operated by third parties (“Third Party Sites”), as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (“Third Party Content”). Such Third Party Sites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites or Third Party Content accessed through the QwkPic Platform.
Location data provided by the QwkPic Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither QwkPic, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data displayed by the QwkPic Platform. Any of your Information, including geolocational data, you upload, provide, or post on the QwkPic Platform may be accessible to QwkPic and certain Users of the QwkPic Platform.
This paragraph applies to any version of the QwkPic Platform that you acquire from the Apple App Store. This Agreement is entered into between you and QwkPic. Apple, Inc. (“Apple”) is not a party to this Agreement and shall have no obligations with respect to the QwkPic Platform. QwkPic, not Apple, is solely responsible for the QwkPic Platform and the content thereof as set forth hereunder. However, Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. This Agreement incorporates by reference Apple’s Licensed Application End User License Agreement for purposes of which, you are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
You will defend, indemnify, and hold us and our affiliates and each of our respective officers, directors, employees, agents, shareholders and suppliers harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of the QwkPic Platform and participation in the Services, including:
- your breach of this Agreement or the documents it incorporates by reference;
- your violation of any law or the rights of a third party, including, without limitation, Photographers, Clients, as a result of your own interaction with such third party;
- any allegation that any materials that you submit to us or transmit through the QwkPic Platform or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and
- any other activities in connection with the Services. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
13. Limitation of Liability
IN NO EVENT WILL WE, OUR AFFILIATES, OR EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS OR SUPPLIERS, BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE QWKPIC PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE QWKPIC PLATFORM, THE SERVICES, OR THIS AGREEMENT, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE WILL NOT BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL AND/OR CONSEQUENTIAL (INCLUDING, BUT NOT LIMITED TO PHYSICAL DAMAGES, BODILY INJURY, DEATH AND/OR EMOTIONAL DISTRESS AND DISCOMFORT) ARISING OUT OF YOUR COMMUNICATING WITH OR MEETING OTHER USERS OF THE QWKPIC PLATFORM OR SERVICES, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
In the event that you have a dispute with one or more Users, you agree to release QwkPic (including our affiliates and each of our respective officers, directors, employees, agents, shareholders, and suppliers) from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected to such disputes with other Users or to your use of the QwkPic Platform or participation in the Services. Furthermore, you expressly waive any rights you may have under California Civil Code Section 1542 (or analogous laws of other states), which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” We reserve the right, but have no obligation, to monitor disputes between you and other Users.
15. Term and Termination
This Agreement is effective upon your creation of a User account, as amended by any modifications made pursuant to Section 1. You may discontinue your use of the QwkPic Platform or participation in the Services at any time, for any reason. We may suspend or deactivate your User account (either as a Client and/or Photographer), or revoke your permission to access the QwkPic Platform, at any time, for any reason, upon notice to you. We reserve the right to refuse access to the QwkPic Platform to any User for any reason not prohibited by law. Either party may terminate the Agreement for any reason upon written notice to the other party. Sections 1, 4 (with respect to the license) and 6-21 shall survive any termination or expiration of this Agreement.
16. Agreement to Arbitrate All Disputes and Legal Claims
You and We agree that any legal disputes or claims arising out of or related to the Agreement (including but not limited to the use of the QwkPic Platform and/or the Services, or the interpretation, enforceability, revocability, or validity of the Agreement, or the arbitrability of any dispute), that cannot be resolved informally shall be submitted to binding arbitration in the state in which the Agreement was performed. The arbitration shall be conducted by the American Arbitration Association under its Commercial Arbitration Rules (a copy of which can be obtained here), or as otherwise mutually agreed by you and we. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Claims shall be brought within the time required by applicable law. You and we agree that any claim, action or proceeding arising out of or related to the Agreement must be brought in your individual capacity, and not as a plaintiff or class member in any purported class, collective, or representative proceeding. The arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative, collective, or class proceeding.
YOU ACKNOWLEDGE AND AGREE THAT YOU AND QWKPIC ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to QwkPic’s business, operations and properties, including User information (“Confidential Information”) disclosed to you by QwkPic for your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of QwkPic in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to QwkPic with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by QwkPic or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of QwkPic; becomes known to you, without restriction, from a source other than QwkPic without breach of this Agreement by you and otherwise not in violation of QwkPic’s rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that You shall provide prompt notice of such court order or requirement to QwkPic to enable QwkPic to seek a protective order or otherwise prevent or restrict such disclosure.
18. Independent Contractors, No Agency
You and QwkPic are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.
19. Notices, Complaints
Except as explicitly stated otherwise, any notices to QwkPic shall be given by certified mail, postage prepaid and return receipt requested to:
4215 Glencoe Ave #403
Marina del Rey, CA 90292
Such notice shall be deemed given three (3) days after the date of mailing. Any notices to you shall be provided to you through the QwkPic Platform or given to you via the email address you provide to QwkPic during the registration process, and such notice shall be deemed given immediately upon sending. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to QwkPic during the registration process. In such case, notice shall be deemed given three (3) days after the date of mailing.
To resolve a complaint regarding the QwkPic Platform, you should first contact us HERE.
This Agreement shall be governed by the laws of the State of California without regard to choice of law principles. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that this Agreement and all incorporated agreements may be automatically assigned by QwkPic, in our sole discretion in accordance with the “Notices” section of this Agreement. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. A party’s failure to act with respect to a breach by the other party does not constitute a waiver of the party’s right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between you and QwkPic with respect to the subject matter hereof.
21. QwkPic Referral Program Rules
The QwkPic Referral Program (“Referral Program”) is offered by QwkPic, LLC (“QwkPic”) and provides Users who are interested in referring their friends or contacts (“Referrers”) the opportunity to refer eligible individuals to join the QwkPic Community as new Customers or Photographers. These Program Rules apply to both referrers and referred Users, so please read carefully to understand your respective rights and obligations.
To be eligible to participate in the Referral Program as a referrer, you must (a) be a legal resident of the United States; (b) be at least 18 years of age; and (c) maintain a QwkPic account in good standing. Referrers may be either Photographers or Customers. A single person may use the QwkPic Platform as either a Photographer or a Customer. However, if you violate the Referral Program Rules or any applicable Terms of Service, QwkPic may suspend or terminate your ability to participate in the Referral Program under any or all of your accounts.
Under the Referral Program, QwkPic may provide you with a unique alphanumeric code (“QwkPic Code”) to distribute to eligible individuals to become new Customers or Photographers. QwkPic may also provide you the ability to create additional QwkPic Codes. QwkPic owns all rights in and to any QwkPic Code whether provided to you or created by you. You acknowledge and agree that: (a) QwkPic may limit the number of QwkPic Codes you may create or are made available to you, (b) you have no ownership rights in any form over the QwkPic Codes, and (c) QwkPic may reclaim, deactivate, invalidate or terminate your QwkPic Code at any time at its sole discretion.
How to Refer New Users
a. Referred Customers.
You may refer eligible individuals to become new Customers on the QwkPic Platform. In order to be eligible for a Referral Reward (defined below) for a new Customer, the person must (i) have never previously created a QwkPic account; (ii) be at least 18 years of age, and (iii) satisfy the applicable Reward Criteria, as discussed below. If these conditions are met, the person shall be considered your “Referred Customer.”
b. Referred Photographers.
You may refer eligible individuals to become new Photographers on the QwkPic Platform. In order to receive a Referral Reward for a new Photographer, the person must (i) have never previously been a Photographer or started an application to become a Photographer; (ii) meet all eligibility requirements and be approved as a photographer on the QwkPic Platform, and (iii) satisfy the applicable Reward Criteria. QwkPic photographer eligibility and approval is determined at the sole discretion of QwkPic, and is not guaranteed. The duration of the review process may vary. If these conditions are met, the person shall be considered your “Referred Photographer.”
c. Invitations through the QwkPic Platform.
d. Other Invitations.
You may also invite individuals to become new Users by distributing your QwkPic Code directly and instructing them to manually input your QwkPic Code into the QwkPic App. A User will not be able to apply your QwkPic Code if (i) they’ve already applied another User’s QwkPic Code or a different promotion code, (ii) they’ve already received QwkPic credit from QwkPic or another source on their User account prior to entry of your QwkPic Code, or (iii) they have a QwkPic photo shoot prior to entering your QwkPic Code in their Account. A Photographer will not be able to apply your QwkPic Code if they start their application without entering your Code. If a User does not enter your QwkPic Code you will not receive attribution for the referral and they will not be considered your Referred User or Referred Photographer. QwkPic reserves the right to supply new Users with QwkPic credit or sign-on bonuses at its discretion.
You are eligible to earn a referral incentive (“Referral Reward”) for each Referred User and Referred Photographer that you refer to the QwkPic Platform (subject to certain maximum limits and the other terms in these Referral Program Rules). As discussed above, in order to qualify as your Referred User or Referred Photographer, the new User must satisfy the applicable Reward Criteria. The Reward Criteria are set by QwkPic in its sole discretion and are subject to change at any time. The Reward Criteria may vary by market or within a particular market. QwkPic, at its sole discretion, may make available certain promotions with different Reward Criteria or Referral Rewards to other Users or prospective Users. These promotions, unless offered to you, shall have no bearing whatsoever on your Agreement or relationship with QwkPic.
If the new User that you refer satisfies the Reward Criteria, the type of Reward you are eligible to receive may depend on (i) which QwkPic User account you used to refer the new user (in general, Referrers, Ambassadors and Local Partners can earn cash for Referred Users paid out in their weekly earnings, whereas Customers receive QwkPic credits in their QwkPic account -- the amount of the Reward may also vary depending on which User account you use), (ii) the QwkPic region associated with your QwkPic account (which may be the last location you have logged into the QwkPic application), (iii) the QwkPic region associated with the Referred User when they apply your QwkPic Code, or (iv) other factors as determined and communicated by QwkPic.
b. Earning Rewards for Referred Customers.
New Customers you refer may receive QwkPic credit upon creating their new QwkPic account (“Referral Credit”). Referral Credit is only valid for use on the QwkPic Platform and is not transferable or redeemable for cash. Referral Credit may contain certain restrictions such as expiration dates or geographical use limitations which will be communicated to the new Customer. New Customers should check the Promo Code tab within their QwkPic App to determine whether they have Referral Credit and any restrictions on its use. In order to satisfy the Referral Criteria, the referred Customer must take their first QwkPic photo session before the Referral Credit expires, but in no event later than thirty (30) days from the creation of their QwkPic account. All terms and conditions for the distribution and use of Referral Credit are determined by QwkPic in its sole discretion.
c. Maximum Rewards for Referred Customers.
The maximum amount of Referral Rewards that QwkPic will pay for Referred Customers is $2,000 per week (either in cash, QwkPic credit, or a combination of the two). For example, if the Referral Reward is $10 per Referred Customer and you generate 230 Referred Customers in a single week, the maximum you can earn is $2,000 (in cash or QwkPic credit) for such week. This maximum Referral Reward amount shall apply across all of your QwkPic accounts (Customer, Photographer, Ambassador, and/or Local Partner). You may not create multiple QwkPic accounts to circumvent the Referral Reward maximum, and QwkPic may withhold or deny any amounts above the maximum Referral Reward. QwkPic reserves the right to change this maximum amount, and it is your responsibility to review the Referral Program Rules for the current maximum limits.
d. Earning Rewards for Referred Photographers.
When you refer a new Photographer to the QwkPic Platform you may be eligible for a Referral Reward if the Photographer is approved and satisfies the Reward Criteria. The applicable Reward Criteria varies by time, market, and promotion. QwkPic will confirm the applicable Reward Criteria for the Referred Photographer (if any) upon submission of their Photographer application. As a standing rule, the new Photographer applicant must complete their Photographer application and become approved as a photographer on the QwkPic Platform within 30 days of starting the application in order to be eligible to complete the Reward Criteria. In addition, the Reward Criteria for new photographers always includes providing a certain number of photo sessions on the QwkPic Platform within a certain number of days of becoming an approved photographer (the specifics shall be confirmed upon application). In all cases, no more than two photo sessions given to the same customer shall count toward the photo shoot total.
e. Maximum Rewards for Referred Photographers.
QwkPic reserves the right to set a maximum amount of Referral Rewards you can earn per week (or any other time increment) for referring new Photographers to the QwkPic Platform. It is your responsibility to review the Referral Program Rules for the current maximum limits.
f. Resolving Disputes over Referrals.
Only one person can earn a Referral Reward for a single Referred User or Referred Photographer. In the event that multiple persons claim credit for a particular referral, QwkPic has full discretion to determine which person earned such referral according to QwkPic’s systems.
g. Reservation of rights.
QwkPic reserves the right to withhold or deduct Referral Rewards or Referral Credit obtained through the Referral Program in the event that QwkPic determines or believes that the receipt of the Referral Reward or Referral Credit was in error, fraudulent, illegal, or in violation of these Referral Program Rules or any other applicable agreement between you and QwkPic.
In connection with your participation in the Referral Program, you expressly agree to the restrictions listed below. When distributing, promoting or communicating your Referral Code(s) you agree that: No spamming. You agree that you will not “spam” anyone with invitations to join the QwkPic community, and that you at all times will remain compliant with CAN-SPAM, the TCPA, and other applicable laws. The following specific activities are prohibited: Mass emailing, texting or messaging people you do not personally know; Use of automated systems or bots through any channel to distribute, post or respond to your Referral Code; Use of scripts, programed or automatic dialers to send invites or to communicate Referral Codes; and Posting referral codes on event or venue pages without express permission from the owner. No Misrepresentations. You agree that you will not attempt to mislead anyone in connection with the Referral Program, either by affirmative representation, implication, or omission. In particular, you agree that you will not: Impersonate any person or entity Create fake accounts, blogs, webpages, profiles, websites, links or messages Misrepresent your relationship with QwkPic or any other third party (Don’t create content or communications that could have the effect of leading a consumer to believe that it is an official communication from QwkPic. Suggest that an affiliation or partnership exists with a third party where none exists. Some examples include: Don’t make misrepresentations with respect to the characteristics or qualification requirements for any referral rewards. You acknowledge that QwkPic may change the characteristics or qualification requirements for referral rewards in its discretion, and therefore you shall not represent any fixed characteristics (e.g., amount of QwkPic credit, expiration date). Prohibited content. You agree that you will not use the QwkPic brand in connection with: Disparaging or defamatory content concerning QwkPic or third parties; Content which promotes racism, bigotry, hatred, discrimination or physical harm of any kind against any group or individual; Offensive, abusive, intimidating or harassing content Content that is sexually explicit, obscene and/or contains nudity Any political and/or religious statement; Content containing images or reference to drugs, alcohol, tobacco, weapons or firearms Content that violates someone else’s privacy Other restrictions. You also agree that you will not: Specify the monetary amount of the referral code unless authorized by QwkPic in writing; Create websites, domains, URLs, social media handles or email addresses containing the word “QwkPic”; Use the names or marks of QwkPic competitors Use images of celebrities or other public or private figures without their written consent Use someone else’s brand name or intellectual property without their written consent (for example, referencing “Superbowl” or “Coachella” would be prohibited); Engage in phishing or attempting to obtain financial or other personal information Solicit passwords or personally identifiable information Sell your Referral Code. You agree that you will only distribute your QwkPic Code free of charge only for promotional purposes. You may not sell, trade, or barter your QwkPic Code under any circumstances. You may not pay or provide anything of value to an invited user beyond any referral credit or collateral supplied by QwkPic. Violate or infringe the rights of a third party. You will not create any QwkPic Code that infringes on the intellectual property rights of any third party. You will adhere to the License terms in any use of the QwkPic Marks. Advertise. You agree that you will not pay to advertise your QwkPic Code or the Referral Program, including via Google, Facebook, Twitter, Bing and Craigslist. Create printed materials other than those authorized by QwkPic (including but not limited to: VistaPrint) Post printed materials on public or private property without the express written consent. Engage in fraudulent activity. You agree that you and your referrals will not defraud or abuse (or attempt to defraud or abuse) QwkPic, the terms of the QwkPic Referral Program, or any invited users. If you violate any of these restrictions QwkPic may, in its discretion, remove your eligibility to participate in the Referral Program, and/or deny you any Referral Rewards earned in violation or suspected violation of these restrictions.
The following terms shall also apply to your participation in the Referral Program. Referred Photographers who earn a Referral Reward for satisfying the Reward Criteria are not eligible for other sign-on bonuses or sign-on guarantees. Users cannot earn Referral Rewards for referring themselves. In exchange for allowing you to promote your QwkPic Code online (subject to the restrictions above), you agree to include a link on any such promotion page back to QwkPic’s promotion page (or such other page as QwkPic designates). All QwkPic promotions run for a limited time only and are subject to change at QwkPic’s discretion.