Terms of Use

Welcome to ShootProof. ShootProof is an online subscription service made available on a platform-as-a-service basis that enables photographers to exhibit, organize, store, sell, exchange, and share photographs via online galleries and portfolio websites. These Terms of Use set forth the terms and conditions pursuant to which photographers may access and use the ShootProof platform and our related services. Capitalized terms used herein and not otherwise defined shall have the respective meanings provided in Section 1.

Your access to and use of the Services is governed by these Terms and is conditioned upon your acceptance of these Terms. Accordingly, by accessing or using the Services you agree to be bound by these Terms. If you do not agree with these Terms, you may not access or use any of our Services.

If you are an individual using the Services on behalf of an Organization, then you are agreeing to these Terms on behalf of that Organization and you represent and warrant that you have the authority to bind the Organization to these Terms. In that case, “you” and “your” and similar terms refer to you and that Organization.

THESE TERMS OF USE CONTAIN AN ARBITRATION PROVISION, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION PROVISION, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS. THESE TERMS OF USE ALSO CONTAIN OTHER LIMITATIONS ON YOU, INCLUDING LIMITATIONS ON OUR LIABILITY, CERTAIN RELEASES OF CLAIMS AND CERTAIN DISCLAIMERS, AND YOU SHOULD READ THESE TERMS CAREFULLY.
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1. Definitions

“Content” means any images and related data that is supported by ShootProof from time-to-time that you or your customers or users submit to the Services.

“Feedback” means any feedback from you or your employees or representatives related to your or their respective access to and use of the Services, including without limitation, feedback on features or functionality, usability, specifications, architectural diagrams, APIs and related information, software or hardware compatibility, interoperability, performance, bug reports, test results and documentation requirements, and may also include suggestions or ideas for improvements or enhancements to the Services.

“Offerings” means your Products, services, offerings, operations and other business activities.

“Order” means (i) an online order page, pricing page, fee schedule or similar website page on a ShootProof website or other related site or page that allows you to select any of the Services (e.g. selecting a specific subscription level or plan offered by ShootProof, selecting a tier or content volume, etc.), and/or (ii) any order form, invoice, statement of work, or other written agreement that is signed by the parties or electronically agreed to by the parties and which sets forth the particular Services to be provided by ShootProof.

“Organization” means an organization or entity that is subscribing to the Services and on whose behalf these Terms are being accepted and entered into.

“Products” means any photographic prints, photographic products, or other products or services offered by you to your customers and buyers via the Platform.

“Services” means, collectively, (a) access to and use of the ShootProof platform as described in these Terms; (b) any professional, training, technical, archive or other services provided by ShootProof as set forth in an Order or otherwise, and (c) any support services and related technologies, websites, applications, software, APIs and/or documentation that may be provided by ShootProof in its sole discretion for facilitating, maintaining and monitoring your use of the foregoing.

“Terms” means these Terms of Use.

“Third Party Services” means third-party websites, platforms, integrations, applications, tools, technology, information, documents, software, materials, information, content and/or services provided or submitted by third parties and integrated with or accessible via the Services.

“Third Party Technology” means any equipment and ancillary software, platforms and/or services needed for you to connect to, access or otherwise use the Services, including, without limitation, Internet access, desktop or laptop computers or other compatible devices, web browsers, browser extensions, etc.

“you”, “your”, and other similar terms means the photographer that is subscribing to the Services and accepting and entering into these Terms in connection therewith. In the case of Organizations subscribing to the Services, “you” and “your” and similar terms refer to that Organization as well as any employee or representative that is accessing and using the Services on the Organization’s behalf.

2. Right to Access and Use

Subject to the terms and provisions of these Terms, ShootProof hereby grants you a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Services on a platform-as-a-service basis, and in each case consistent with any written or electronic Orders or other agreement between you and ShootProof.

If you are an Organization, ShootProof also hereby grants you a non-exclusive, non-transferable, non-sublicensable right and license to permit your employees and representatives to access and use the Services for purposes of exercising your rights and performing your obligations hereunder, provided that you cause each employee and representative to fully comply with these Terms and each applicable Order, and provided further that you shall be fully responsible and liable for all acts and omissions of the those employees and representatives in relation to the Services and/or that, if performed by you, would constitute a breach or violation of these Terms or an Order.

ShootProof provides the Services subject to your compliance with all the terms, conditions, policies and notices contained or referenced in these Terms, as well as any other written or electronic Order or other agreement between you and ShootProof. In addition, when using the Services, you shall be subject to any posted guidelines, rules or documentation (if any) applicable to such services or materials that may contain terms and conditions in addition to those in these Terms (e.g. an Authorized Use Policy, the Seller Agreement). All such guidelines, rules or documentation are hereby incorporated by reference into these Terms.

3. Your ShootProof Account

To create or use a ShootProof account, you must be over 18 years of age. If you are under 18 years of age and desire to establish your own ShootProof account, please have your guardian contact us at support@shootproof.com to discuss permissible use options for minors. You must provide us true, accurate, current and complete information about yourself when you create your ShootProof account. If the information you provide is untrue, inaccurate, incomplete or outdated, or we have reasonable grounds to suspect it is, we reserve the right to suspend or terminate the Services. While multiple paid ShootProof accounts are permissible, you may only have one free ShootProof account at any given time. If we determine that you have multiple free accounts in violation of the foregoing or are otherwise not in compliance with these Terms, we may close your ShootProof accounts and delete all photographs in the accounts.

4. Account Security

You are responsible for safeguarding and maintaining the confidentiality of your account information, including the password(s) and other account access and login credentials that you use to access the Services. You are responsible for any activities or actions under your respective password(s) and other account credentials, whether they are with ShootProof or a third-party service. You agree not to disclose your account access credentials to any third party. ShootProof cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. You must notify ShootProof immediately upon becoming aware of any breach of security or unauthorized use of your ShootProof account. ShootProof has the right to monitor use of the Services and all user access and login credentials. If you are an Organization, you are responsible for determining which of your employees and representatives are and shall be authorized to access your ShootProof account, and you are responsible for designating those employees and representatives as authorized users for purposes of your ShootProof account. Please note that each individual accessing the Services via your account is required to have separate account login credentials (i.e., sharing of user names or passwords is not permitted). You are responsible for all user logins occurring via your account.

5. ShootProof Pay

If you are a U.S. resident, you have the option to sell products through the Services by using ShootProof Pay (our payment processing service). If you intend to use ShootProof Pay, you are required to agree to our Seller Agreement, which is currently located at https://shootproof.com/legal/seller-agreement-stripe, and which governs your use of the payment processing services. The applicable fees and charges for ShootProof Pay and electronic bank transfers are listed at https://shootproof.com/legal/shootproof-pay-fee-schedule, which may be updated by us from time to time. Please note that the Seller Agreement also contains additional terms regarding your ShootProof account and product sales occurring via ShootProof Pay, including payment terms, fund availability terms, payment set-off terms, and terms related to your liability and obligations for transaction chargebacks. If you are using ShootProof Pay and fail to abide by your Seller Agreement, we may suspend or deactivate your ShootProof account.

You are not required to use ShootProof Pay and may sell your products using other means acceptable to you and your customers (cash or check payment, online money transfer, etc.) You are responsible for obtaining all necessary permissions and consents from any third party payment processors you utilize (Paypal, etc.), and ShootProof assumes no responsibility or liability therefor.

6. Subscription Plans

You may access the Services under a free plan or paid subscription plan. Details of our particular plan offerings can be found on our website and the particular subscription plan governing your account shall be mutually agreed upon in an Order. Please note that the features and functionality of your particular subscription plan may change over time. We reserve the right to modify, revise, upgrade or limit the Services (and any portion thereof) for any reason and at any time. We also may (but are not required to) expand or enhance the Services by providing additional and expanded premium features that are in addition to our standard functionality in the general course of our development model and offering roadmap, and you may be required to pay additional costs if you desire to access and use those premium features. You understand that certain functionality and portions of the Services may only be available to certain customers and that not all functionality and portions of the Services may be available to all customers and all users. The particular features and functionality available to you will depend on your applicable subscription plan and the terms of your Order(s).

If you have a paid subscription, the pricing page (and any successor pages) pursuant to which you selected and subscribed to the Services shall be considered your Order for purposes of these Terms. Your payment to ShootProof will automatically renew at the end of the subscription period specified in your applicable Order (e.g. on the website page that sets forth pricing based on the subscription length) for the same duration as the prior subscription period, unless you cancel your paid subscription by submitting a cancellation form (located at https://studio.shootproof.com/v3/account/closeout) no less than three (3) calendar days prior to the end of your subscription period. The cancellation will take effect the day after the last day of your subscription period. Any cancellation notice submitted later than three (3) calendar days prior to the end of the then current subscription period will take effect at the end of the following subscription period.

We may change the price for paid subscriptions from time to time, and will communicate any price changes to you. Price changes will take effect beginning at the start of your next subscription/billing period that is thirty days’ following our notice of the price change. In other words, for monthly subscriptions, the price change will take effect beginning at the start of your next monthly billing cycle that is at least thirty days following the date of our price change notice, and for annual subscriptions, the price change will take effect beginning at the start of your next annual billing cycle that is at least thirty days following the date of our price change notice. By continuing to use the Service after the price change takes effect, you accept the new price. If you do not accept a price change, then you may either downgrade your account to a lower subscription plan tier or terminate your account, in each case by providing ShootProof with written notice at least thirty days’ prior to the effective date of the price change. If you elect to downgrade your subscription tier, the Service features and functionality available to your account will be reduced consistent with the lower subscription tier to which you are downgraded, and moving forward you shall only be responsible for the payment of fees based on that new lower subscription level.

We may sometimes in our sole discretion offer pricing discounts, promotions and incentives, the exact terms of which may vary and change over time and/or be applicable to specific promotions. We generally offer promotions to new customers only but we reserve the right to offer promotions to current customers on a case-by-case basis. Any terms and conditions applicable to promotions will be found on any promotion correspondence (e.g. in an email offering the promotion, in an advertisement for the promotion, etc.) and/or on our platform or web site. Please contact us if you have any questions about our promotions and terms and conditions applicable to the promotion. In no event we will provide a refund related to promotions.

Additionally, ShootProof also reserves the right to more frequently change, on a pass-through basis, any third-party fees at any point during the Term.

7. Changes to Subscription Plans

Subscription plans, whether free or paid, may be changed by you by entering into an Order with ShootProof (e.g. selecting an upgraded plan from our website plan pages).

If you choose to upgrade your paid subscription, you will be charged for the new paid subscription at the time of upgrade and we will credit any amounts pre-paid but un-used by you in connection with your prior subscription to the fee for the new upgraded subscription and you will be billed for fees not covered by the credited amounts. Please note that subscription upgrades will reset your applicable payment and renewal cycle. In other words, if you upgrade your subscription plan during the middle of your subscription term, your payment and renewal cycle will re-set and your new upgraded subscription plan will have a payment and renewal cycle that commences on the first day the upgraded subscription plan takes effect and continues thereafter in accordance with the new plan to which you have upgraded.

We may also sometimes in our sole discretion offer special pricing incentives pursuant to which you have the opportunity to renew your existing subscription plan mid-cycle at a lower price. These incentives are treated similarly to “upgrades” for purposes of these Terms and will result in your subscription term being re-set effective as of the date on which you accept the renewal offer. In this situation, we will credit any amounts pre-paid but un-used by you in connection with your prior subscription to the fee for the renewed subscription, and you will only billed for fees not covered by the credited amounts.

You also have the ability to downgrade your paid subscription plan. However, please note that downgrades do not take effect until your next billing cycle. For example, if you downgrade from one annual plan level to another annual plan level, the downgrade does not become effective until the next renewal date of your annual plan. For another example, you may not change from an annual billing and renewal cycle to a monthly billing and renewal cycle during the middle of your then applicable annual subscription term (and vice versa). If you elect to downgrade your paid subscription, we will not issue or grant any refunds or credits and the same billing and renewal cycle shall continue to apply until the end of your subscription term. Changes to downgrade your subscription plan will only take effect at the beginning of your next subscription renewal period (whether the next month or the next year).

Please note that the rules and requirements specified above set forth our general policies for photo plan subscription changes. Different terms may sometimes apply depending on the specific product and service offering you access and use. For instance, our music subscription plans currently offer broader flexibility with respect to subscription plan changes, including the ability to downgrade and/or cancel music subscription plans mid-cycle and receive credits for amounts pre-paid but unused prior to the downgrade and/or cancellation. If you have any questions or concerns regarding potential changes to your subscription plan, please contact ShootProof at support@shootproof.com and we will use reasonable efforts to respond as soon as practicable.

8. Free Trial

We may sometimes in our sole discretion offer a one-time free trial period on paid subscriptions. The free trial period will expire at the end of the particular time period specified in your Order governing the trial (e.g. a 14 day free trial will automatically expire after 14 days). Upon expiration of the free trial period, you will be offered the option to purchase a paid subscription. Should you choose not to subscribe to the paid subscription, your account will automatically convert to a free subscription and applicable Content storage limits will apply. This means Content stored in your account in excess of applicable storage limits will be automatically deleted and no longer capable of being retrieved. You may not create new accounts to use multiple free trials.

9. Payment Authorization; Invoices; Recurring Billing; No Refunds

A valid credit card, bank account or other payment method will be required to receive the Services. ShootProof may bill you in advance in accordance with your Order or any applicable pricing schedule set forth on ShootProof’s website, including (to the extent applicable) automatically charging your credit card on file for Services to be provide during the upcoming payment period. In particular, you acknowledge and agree that ShootProof will automatically commence charging your credit card on file or otherwise processing payments without any further action required by you. Except for the money back guarantee described below in this Section 9 and except to the limited extent contemplated or permitted by Section 7 (Changes to Subscription Plans) (e.g., credits earned in connection with subscription upgrades and renewals), there will be no refunds or credits for partial months of paid Services. Additionally, please note that any amounts credited to your account will expire after one year if not used during that time period. You agree to be billed monthly, annually or at such other installments as set forth in an Order or as applicable to ShootProof’s standard Services, and hereby grant ShootProof the right to charge your credit card (or otherwise facilitate payment) with the payment information you have provided, including in advance and on a recurring basis. Billing and invoicing cycles may not be changed during the middle of your subscription period, and may only be changed in connection with subscription upgrades or with ShootProof’s written approval in connection with the renewal of your next subscription period not involving a subscription upgrade. You will reimburse ShootProof for any fees that ShootProof may be charged related to declined payments, and you will keep ShootProof informed of all changes to your billing information. All amounts invoiced hereunder are due and payable as specified in the applicable Order. Unpaid fees that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by applicable law, whichever is lower, plus all reasonable expenses of collection.

For paid subscriptions, ShootProof provides a 14 day money back guarantee. This means you may cancel your paid subscription within 14 days from your initial signup. After the initial 14 days of your paid subscription, we will not provide refunds of subscription fees that you have already paid to us whether as a result of a change of your paid subscription or termination of your paid subscription. Please note that this money back guarantee does not apply to customers who converted to a paid subscription after a free trial. If you participated in a free trial before electing a paid plan, we do not provide a 14 day money back guarantee.

10. Audit

ShootProof shall have the right and authority to monitor your use of the Services electronically to ensure compliance with the terms and provisions of these Terms. In addition, in the event that ShootProof has a reasonable belief that you are not in compliance with the terms or provisions of these Terms, then ShootProof shall have the right to audit your business, records and systems to ensure compliance with the terms and provisions of these Terms. ShootProof shall provide ten days’ notice to you and such audit shall not unreasonably interfere with your business operations. In the event that a violation of these Terms is found by ShootProof and such violation relates to an underpayment of fees, then, in addition to any other rights it may have, ShootProof shall invoice and you shall pay all underpaid fees plus interest at the rate of 1% per month plus the fees of such audit.

11. Archiving

You may archive and store Content using the Services for a fee (“Archiving”). Archiving is paid for in arrears upon the end of each billing cycle. Archiving renews automatically at the end of each billing cycle unless (i) you fail to pay for any past Archiving, or (ii) all archived Content is deleted or moved back to un-archived status by you prior to renewal. Depending on when you delete your archived content within the billing cycle, you may be charged additional fees associated with the next billing cycle. Fees for Archiving will be prorated based on the amount of storage utilized by the archived Content during a billing cycle. Note that fees for Archiving may be changed on an ongoing basis at any time and at ShootProof’s sole discretion, including without limitation based on any fee increases implemented by our third party infrastructure and storage vendors. We charge a minimum fee for Archiving per billing cycle which we may change from time to time in our sole discretion. Please contact us if you would like to know the then-current minimum fee. Please note that Archiving is offered for convenience purposes only and we do not guarantee or warrant that any archived Content will always be available and will not be subject to inadvertent or unintentional damage, corruption, or loss. We do not back-up any archived Content and you are encouraged to back-up all of your Content separately. We may also place limits on, or assess additional fees based on, the amount of storage available for your archived Content, and excessive or non-standard use of the Archiving functionality may result in termination or suspension of your right to archive Content or may even result in termination of your Service account.

12. Purchases and Sales of Products

a. Product Sales. ShootProof is a platform that enables you and your customers and buyers to negotiate and complete transactions for the purchase and sale of Products. All such transactions are strictly between you and your customers and buyers, and ShootProof is not a party to those transactions. ShootProof does not provide, endorse, recommend or guarantee any of your Products that you elect to advertise or present through the Services. ShootProof shall not in any way be liable for the quality and delivery of Products that your customers and buyers purchase from you. Any disputes arising between you, on the one hand, and your customers and buyers, on the other hand, with respect to Products are solely between you and those customers and buyers, and ShootProof assumes no reasonability and disclaims all liability therefor. ‍

b. Fulfillment and Refunds. You agree to fulfill all Product orders in accordance with these Terms (including the Seller Agreement covering your access to and use of ShootProof Pay (to the extent applicable)) at the time of the applicable order. It is your responsibility to fulfill all customer and buyer orders within a reasonable time of the placement of the order. ShootProof shall notify you electronically within 24 hours of orders being placed. Your buyers and customers are responsible for paying you directly for their applicable ordered Products, whether through the Services or through other means mutually agreed upon by you and your buyers and customers (e.g., direct cash payment, etc.)

c. Contract Templates. ShootProof may provide form purchase orders, purchase or services agreements, release or waiver agreements, or other similar agreement forms and contract templates for you and your customers and buyers to document your relationship. These templates are provided for convenience and reference purposes only and ShootProof makes no representations or warranties regarding the legality, suitability, correctness or appropriateness of any such templates. Please review all templates closely prior to using them. We recommend that you and your buyers and customers should obtain separate legal advice regarding the templates prior to using them. In certain cases, additional legal terms and conditions may apply to your use of the templates made available via the Services. Please note that you and your buyers and customers may utilize different contracts and documents in connection with your transactions in lieu of any templates made available via the Services. It is not a requirement that you must use our templates in orders to carry out the transactions, and you use our templates at your own risk. Whether you use our templates or your own contracts and documents, you are required to have a contract or formal written agreement with your clients and buyers, including terms that protect ShootProof consistent with the terms of these Terms of Use.

d. Product Return Policy. You are responsible for determining your own return and refund policy for Products you sell through the Services. We are not responsible for ensuring the return of any Products or enforcing your return policies.

e. Lab Fulfillment and Charges. You have the option to use ShootProof Partner Labs to fulfill orders for Products sold through the Services. In the alternative, you can also self-fulfill orders with the lab of your choice outside of our Services. The cost for each ShootProof Partner Lab-fulfilled item will be visible in a ShootProof Partner Lab price sheet, and you will have the ability to sell each ordered Product to your customers for any price that you choose. The prices in the ShootProof Partner Lab price sheet may be adjusted from time to time by the ShootProof Partner Labs. ShootProof will use reasonable efforts to provide you with timely notice of any such pricing changes and it is your responsibility to adjust your own Product prices accordingly. When you use a ShootProof Partner Lab to fulfill an order, you will be responsible for payment of the fees and costs assessed by the ShootProof Partner Lab and any associated shipping for that order. The total lab fees and shipping costs (as noted in the ShootProof Partner Lab price sheet applicable at such time) may be deducted via the Platform from the total amount collected from the buyer or customer for the order (if you use ShootProof Pay) or assessed against the credit card or other billing mechanism associated with your account (if not using ShootProof Pay). ShootProof Partner Lab fulfillment costs and fees will only accrue (i) when you have confirmed that the particular order will be sent to the ShootProof Partner Lab based on selecting ‘Send to Lab’ on the order page, or (ii) based on your general settings for ShootProof Partner Lab order submissions and approval. In the event that there is not enough money collected from the buyer’s applicable order to cover the lab and shipping costs, you will be charged the difference in the amount collected from the buyer for the applicable order and the costs associated with the order, and you hereby authorize ShootProof to use available funds in your ShootProof account or to otherwise charge your credit card as necessary to pay for the balance of the costs. If you use ShootProof Pay but there are not enough funds in your ShootProof account to pay the balance, you hereby authorize us to charge your credit card linked to your ShootProof account for the unpaid costs (plus any applicable credit card processing fee if ShootProof Pay is used for such charge). All charges will be visible to you in detail prior to confirming the order and submitting it to the ShootProof Partner Lab which will trigger the actual charge. All ShootProof Partner Labs are third party vendors. If you believe a ShootProof Partner Lab has improperly or incorrectly fulfilled an order, please contact support@shootproof.com within thirty (30) days of date of delivery. ShootProof will discuss the concern with you and, depending on the circumstances surrounding the order, may in its sole discretion reprint the item, or, refund your money. Please note that this return policy only applies to orders fulfilled via ShootProof Partner Lab that involve material lab errors, and does not apply to any transactions between you and your buyers and customers generally, or to orders fulfilled via third party labs.

13. Your Responsibilities and Agreements.

You agree not to misuse the Services. For example, you agree not to, directly or indirectly do or attempt to do or encourage or permit any third party to do any of the following:

• restrict or inhibit any other users from using or enjoying the Services;
• use the Services for any illegal or unlawful purpose;
• post or upload any Content on the Services in violation of any applicable law, including intellectual property laws and right of privacy or publicity laws, or any contractual obligation;
• post or upload any Content that is unlawful, harmful, threatening, harassing, derogatory, defamatory, libelous, obscene, vulgar, pornographic, profane, invasive of another’s privacy, or any other material that could give rise to any civil or criminal liability under applicable law or is otherwise deemed false, inaccurate, misleading or objectionable at the sole discretion of ShootProof;
• post or upload any Content that harms minors in any way, including, but not limited to, Content that violates federal and state child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct;
• post or upload other people’s private or personally identifiable information, such as credit card numbers, street address or Social Security/National Identity numbers, without their express authorization and permission;
• post, upload, or download any Content that you know, or reasonably should know, cannot be legally reproduced, displayed, performed, and/or distributed in such manner;
• falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other Content contained in a file that is uploaded or downloaded through the Services;
• impersonate others through the Service or otherwise misrepresent your affiliation with a person or entity in a manner that does or is intended to mislead, confuse, or deceive others;
• send unsolicited communications, promotions or advertisements, or spam;
• harvest or collect information about users of the Services without their express consent;
• violate or fail to comply with any user guidelines or policies for the Services made available to you by ShootProof from time to time;
• access and/or use of features and/or Services not included in your subscription plan at the time of access and/or use, or if you are temporarily or indefinitely suspended from using the Services;
• modify, adapt, sublicense, copy, loan, translate, sell, reverse engineer, decompile, disassemble, or decrypt or discover the source code of, any portion of the Services, or otherwise transfer, assign the right to use or commercialize any of the Services including but not limited to posting or otherwise making the Services available on the Internet including as a service bureau or application service provider;
• adapt or write or develop any derivative works based on the Services or use the Services in any manner except as expressly provided in these Terms or an Order;
• interfere with or disrupt the integrity or the operation of the Services;
• frame or mirror any content available through the Services;
• copy any features, functions, screens, interfaces or graphics of the Services;
• forge headers or otherwise manipulates identifiers in order to disguise the origin of any Content transmitted through the Services;
• use any robot, spider, site search/retrieval application, or other manual or automatic device or process to download, retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the Content available through the Services;
• probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
• access or search the Services by any means other than our publicly supported interfaces (for example, “scraping”);
• publish or link to malicious content intended to damage or disrupt another user’s browser or computer or to compromise a user’s privacy;
• spoof or create any emails, content, correspondence or other information from ShootProof, including fake or fraudulent acceptances or offers;
• exceed any memory or computer storage limits allocated to your account, including exceeding any maximum Content storage levels applicable to your account, or otherwise engage in activities that imposes an unreasonable or disproportionately large load on our hosting infrastructure;
• create any competitive service or feature (or otherwise establish a competitive business) based on, in whole or in part, any of ShootProof’s Services or business ideas;
• use the Services to gain unauthorized access to ShootProof’s or any third parties network(s) or server(s); and/or
• interfere with, or disrupt the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Service, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Services.

You understand and agree that uploading and downloading of any Content through the Services are done at your own discretion and risk. You acknowledge that it is your ultimate responsibility to protect and secure your Content, even if we offer features that assist you in doing so. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Services and your Content, including copyright laws and data privacy laws. We reserve the right to immediately suspend or terminate your account, or delete Content within your account, without further notice in the event that, in our sole and absolute judgment, you violate these Terms, or abuse the Services. Unless otherwise expressly agreed to the contrary in an Order, we also reserve the right to at any time establish a maximum amount of memory or other computer storage allocated to your account and a maximum amount of Content that you may store, post, collect or transmit on or through the Services, and we may at any time and without advance notice to you delete Content within your account that is in excess of such maximum amounts. This description of prohibited conduct is not intended to be exhaustive, and ShootProof has sole discretion to determine what constitutes prohibited conduct in relation to the Services.

You agree that, at all times during the Term, you shall: (i) perform those tasks and assume those responsibilities specified in any Order; (ii) upon ShootProof’ request, make available to ShootProof personnel familiar with your business requirements related to the Services; (iii) reasonably cooperate with ShootProof regarding the Services: (iv) provide true, accurate, current and complete information about you as prompted by ShootProof’s forms and in any other related document or agreement; (v) maintain and update your information to keep it true, accurate, current, and complete; and (vi) (If you have a free subscription) access and use your account at least once per calendar quarter. Each Order shall also contain any assumptions you have with respect to the Services and/or additional responsibilities required of you for ShootProof’s performance of the Services. You understand that ShootProof’s performance is dependent on your timely and effective satisfaction of all of your responsibilities hereunder and timely decisions and approvals by you. You acknowledge that, if any information provided by you is untrue, inaccurate, not current, or incomplete, ShootProof reserves the right to terminate your use of the Services and withdraw any offer or agreement.

You represent and warrant: (a) these Terms: (i) have been authorized by all necessary actions, (ii) do not violate the terms of any applicable law or court order to which you are subject or the terms of any material agreement to which you or any of your assets may be subject, and (iii) will not breach any contractual right of, or obligation to, any third party and are not subject to the consent or approval of any third party; and (b) these Terms are the valid and binding obligation of you, enforceable against you in accordance with its terms.

14. Third Party Technology

You shall be responsible for obtaining, installing and maintaining all Third Party Technology. You shall also be responsible for maintaining the security of the Third Party Technology, accounts, passwords (including but not limited to administrative and user passwords) and files, and for all uses of any of such accounts or the Third Party Technology with or without your knowledge or consent. In order for you to make full use of the Services, it may be necessary for you to use particular Third Party Technology and you shall be responsible for procuring and maintaining such Third Party Technology and complying with any requirements related thereto. If you are unable to access all or part of the Services because you do not have access to any necessary Third Party Technology, this shall not constitute a breach of these Terms by ShootProof and ShootProof shall not be liable for any loss, damage or expense which may result from your inability to access the Services.

15. Your Offerings

ShootProof assumes no responsibility or liability for any of your Offerings, including, without limitation, (i) that use of the Services by you shall comply with all applicable laws, and (ii) your services to any of your end clients or customers. You are solely responsible for providing and delivering the Offerings to your clients and customers, and resolving all disputes with such clients and customers. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT SHOOTPROOF SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY OF YOUR OFFERINGS AND ANY CLAIMS, ISSUES, MATTERS OR OTHER INTERACTIONS WITH ANY OF YOUR CLIENTS OR CUSTOMERS.

16. Taxes

You agree to be responsible for and to pay any applicable sales, personal property, use, VAT, excise, withholding, or any other taxes that may be imposed, based on this license, or the use or possession of Services, or any software or other product provided under these Terms, excluding any taxes based on net income payable by ShootProof. If you are exempt from paying any sales, use or other taxes, you must provide ShootProof with appropriate evidence of tax exemption for all relevant jurisdictions.

17. Content

ShootProof currently supports and enables the submission of Content on or through the Services in JPEG file format only (and PNG for gallery logos). Additional file formats may be supported and enabled in the future in ShootProof’s sole discretion. ShootProof does not claim ownership of any Content that you post on or through the Services. Instead, you hereby grant to ShootProof a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use, copy, store, modify, distribute, publish, and process the Content that you provide through the Services solely for purposes of providing or improving the Services (including vendor order fulfillment services). You acknowledge and agree that your relationship with ShootProof is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any Content does not place ShootProof in a position that is any different from the position held by members of the general public.

You are and shall be solely responsible for all Content that you submit, provide or upload to the Services, including the accuracy, quality, integrity, legality, reliability, appropriateness, and copyright of all such Content. You represent and warrant that: (i) you own the Content posted by you on or through the Services or otherwise have the right to grant the rights and licenses set forth in these Terms; (ii) the posting and use of your Content on or through the Services does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) the posting and use of your Content on or through the Services does not violate any applicable laws or regulations; (iv) the Content shall not include offensive, harmful, fraudulent, false and/or abusive language or content, including without limitation: obscenities, harassment, vulgarities, sexually explicit language and hate speech (e.g., racist/discriminatory speech), and shall not be encrypted or contain viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept or appropriate any system, data or personal information; and (v) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Services.

You are responsible for obtaining any permissions or consents required, as well as proper release documentation from any person whose image or other personal data is posted or submitted by you through the Services. If the Content contains identifiable individual(s) under the age of eighteen (18), you have obtained such written consent, release and/or permission from such individual’s parent or guardian (and you agree to provide to us a copy of any such consents, releases and/or permissions upon our request). If you upload, display or publish an image that contains the likeness of an identifiable individual under the age of eighteen (18), we strongly encourage you not to include any identifying information (such as the individual’s name or address) with such Content.

You are responsible for the security and protection of your Content. While Shootproof may offer certain features and tools that can assist with these efforts (e.g. watermarks), we do not guarantee their effectiveness and you are required and obligated to take any additional or separate actions to protect and secure your Content while using the Services. Shootproof is not, and shall not be, liable in the event any third party accesses or uses your Content.

While ShootProof does not and cannot review all Content provided to it, and is not responsible for such Content, ShootProof reserves the right to delete, edit or rearrange Content that it, in its sole discretion, deems objectionable, in violation of copyright or trademark laws, in violation of these Terms, in violation of maximum memory or storage limits, or otherwise unacceptable. You understand and agree that ShootProof cannot and will not be responsible for the Content posted on the Service and you use the Services at your own risk. ShootProof reserves the right to suspend your (or, if you are an Organization, your employees’ or representatives’) continued access to or use of the Services pending removal of any Content that violates these Terms and ShootProof may also permanently terminate your continued access to and use of the Services (or, if you are an Organization, the continued access by any or all of your employees or representatives).

18. Use of ShootProof Software

ShootProof may provide certain downloadable client software for use in connection with the Services (e.g., browser short cuts, mobile applications, APIs). The license being granted to you hereunder does not constitute a sale of that software or those applications, or any copy thereof, and as between ShootProof and you, ShootProof retains all right, title, and interest in all such software and applications. Additional terms and conditions may govern your access to and use of the software.

19. ShootProof Rights

a. Remote Monitoring. ShootProof shall have the right and ability to monitor your use of the Services remotely and/or electronically to verify compliance with the terms and provisions of these Terms and each Order.

b. Telemetry and Remote Collection. You acknowledge and agree that certain Services may transmit to ShootProof (and ShootProof may collect and use) certain data and information related to the Services, including as related to its operation and use.

c. Remote Disablement. In the event that you breach any of the terms or provisions of these Terms or an Order, you acknowledge and agree that ShootProof may remotely suspend, disable or terminate your use of the Services.

20. ShootProof Property and Intellectual Property; Confidentiality

a. General. All rights, titles, and interests in and to the Services (excluding Content) and all Feedback are and will remain the exclusive property of ShootProof and its licensors. The Services and Feedback are protected by copyright, trademark, trade secret, and other laws. ShootProof.com, ShootProof, and the ShootProof logo and other marks are trademarks of ShootProof. No portion of the Services or any Feedback may be reprinted, republished, modified, or distributed in any form without the express written permission of ShootProof. You agree to assign and hereby do fully and irrevocably assign to ShootProof all of your right, title and interest in and to the Feedback, including all intellectual property rights therein. Any Feedback you provide regarding ShootProof, or the Services is entirely voluntary. Feedback is our exclusive property and we may use Feedback for any purpose, including but not limited to: (a) improve our Services; (b) develop new products and or features; and/or (c) market and promote our Services. The Services and all Feedback are and shall be deemed the Confidential Information of ShootProof. ShootProof does not warrant or represent that use of the Services will not and does not infringe the rights of third parties.

b. Reservation of Rights. You acknowledge and agree that the Services are provided under license, and not sold, to you. You do not acquire any ownership interest in any of the Services under these Terms, or any other rights thereto other than to use the Services in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Terms. ShootProof and its licensors and service providers reserve and shall respectively retain their entire right, title, and interest in and to the Services, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in these Terms.

c. Confidentiality.

i. “Confidential Information” means any information disclosed previously or in the future by ShootProof (the “Disclosing Party”) to you (the “Receiving Party”), either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, business plans, source code, software, documentation, specifications, mock ups, financial analyses, marketing plans, customer names, customer lists, product plans, products, services, inventions, processes, designs, drawings, engineering or hardware configuration information, know-how, trade secrets, or any other proprietary or business information), which is designated as “Confidential,” “Proprietary” or some similar designation, or other information, the confidential or proprietary nature of which is reasonably apparent under the circumstances. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession. Moreover, it shall not be a breach of these Terms for the Receiving Party to disclose to a court or other governmental body Confidential Information of the Disclosing Party which the Receiving Party is required by law to disclose to such entity, provided that the Receiving Party shall give the Disclosing Party written notice of such requirement prior to disclosure so that the Disclosing Party may seek a protective order or other appropriate relief. The Services shall all be considered the Confidential Information of ShootProof without any further requirement of marking or designation.

ii. Non-Disclosure and Non-Use. The Receiving Party shall not disclose any Confidential Information of the Disclosing Party to third parties or to the Receiving Party’s employees, except those employees who require the information to perform obligations or exercise rights under these Terms and who have signed a confidentiality agreement at least as protective of the Confidential Information of the Disclosing Party as these Terms. The Receiving Party shall not use any Confidential Information of the Disclosing Party for any purpose other than for the purposes contemplated by these Terms. The Receiving Party shall take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the Disclosing Party. Without limiting the foregoing, the Receiving Party shall exercise the same degree of care to protect Confidential Information of the Disclosing Party as it does to protect its own highly confidential information of like nature, which shall in no event be less than reasonable care. The Receiving Party shall immediately notify the Disclosing Party in the event of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information.

21. Privacy

If (i) you are established in the European Economic Area (“EEA”); (ii) you provide goods or services to individuals in the EEA; or (iii) you are otherwise subject to the requirements of the EU General Data Protection Regulation (“GDPR”), and ShootProof acts or will act as a data processor of personal data on your behalf under the GDPR, then you are required to enter into our Data Processing Addendum (EU/UK) prior to sharing any personal data with us. Please contact us at support@shootproof.com to obtain a copy of our Data Processing Addendum (EU/UK) and discuss next steps for execution of the Data Processing Addendum (EU/UK).

22. Term and Termination

These Terms are effective as of the date that you first use any of the Services, click “I Agree” when these terms are first presented in connection with the Service registration process, or as otherwise specified in an Order. These Terms will continue to apply to you until the termination or expiration of your use of the Services. ShootProof may terminate or suspend your access to any or all of the Services at any time, including in the event of your actual or suspected unauthorized use of the Services or non-compliance with the Terms or any Order. Without limiting the foregoing, any suspected fraudulent, abusive or illegal activity may be grounds for terminating your relationship with ShootProof and may be referred to appropriate law enforcement authorities. In addition, you acknowledge that ShootProof will cooperate fully with investigations of violations of systems or network security at other sites. In addition to the foregoing, either party shall have the right to terminate these Terms if the other party terminates its business activities or becomes insolvent, files for bankruptcy, admits in writing its inability to pay debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority. Additionally, we reserve the right to terminate free accounts that are abandoned. This means if you do not access and use your free account at least once per calendar quarter, we may terminate your account. If you have a paid subscription, we reserve the right to terminate your account if you have not paid all amounts owing by you in a timely manner (e.g., within 90 days of payment due date) or are otherwise have delinquent payment obligations to ShootProof.

Upon termination, regardless of the reasons therefore, your right to use the Services immediately ceases and any Content you have stored on the Services will be deleted and may no longer be retrieved. We recommend making a backup copy of your Content on a regular basis and in any event before terminating your plan. Once any Content has been deleted by ShootProof, it will no longer be accessible or available to you. If you or ShootProof terminate these Terms, or if ShootProof suspends your access to the Services, you agree that ShootProof shall have no liability or responsibility to you and, except for cancellations made during the 14 Day Money Back Guarantee period, ShootProof will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law.

23. Copyright Infringement

The Digital Millennium Copyright Act of 1998 (as updated or amended from time to time, the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by ShootProof infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked, containing the following information:

• Signature of the owner of, or the person authorized to act on behalf of the owner of, the copyright or other intellectual property interest.
• A detailed description of the copyrighted material and its location.
• The URL of the copyright or other material in question.
• Your current contact information, including address, telephone number, and email address.
• A signed statement from you stating that it is your belief in good faith that your copyright has been infringed.
• A signed statement from you that all information provided by you is accurate and that you are either the copyright owner or are authorized to act on his/her behalf. This statement shall be under penalty of perjury.

If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see www.copyright.gov for more details. Notices and counter-notices with respect to our websites should be sent to email: support@shootproof.com or written form to: ShootProof Attn: Copyright Compliance 600 Galleria Pkwy, Suite 1460, Atlanta, GA 30339.

We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA. Nothing contained herein shall be construed as legal advice and it is not intended as legal advice.

24. Third Party Services

The Services may include or provide links to, or integrations with, Third Party Services. These Terms do not apply to any Third Party Services. It is your responsibility to become familiar with the terms and conditions, privacy policies, third party agreements or other legal terms applicable to the Third Party Services, and to contact the provider of those Third Party Services with any concerns. You agree that ShootProof is not responsible for any loss, expense or damage arising from your dealings with Third Party Services or from possible errors, faults, interruptions or discontinued services caused by or associated with any Third Party Services. The Third Party Services (and the third parties responsible therefor) are not under ShootProof’s control, and you acknowledge that ShootProof is not responsible for the accuracy, completeness, appropriateness, performance, reliability, availability, data retention, support, privacy, security, validity, copyright compliance, non-infringement, legality, decency, or any other aspect of such Third Party Services, nor is ShootProof responsible for errors or omissions in any references to other parties or their products and services. The inclusion of Third Party Services, including any reference or link thereto, is provided merely as a convenience and does not imply endorsement of, or association with, the Services or ShootProof, or any representation or warranty of any kind, either express or implied. You access and use all such Third Party Services entirely at your own risk and subject to such third parties’ terms and conditions. The providers of the Third Party Services shall not be deemed subprocessors for any purpose under ShootProof’s data protection agreements or privacy policies.

25. Indemnity

You agree to indemnify, defend, and hold ShootProof and its licensees, licensors, and third party service providers (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all losses, liabilities, damages, claims, costs, losses, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) relating to or arising from: (i) your use of and access to the Services, including any data or Content transmitted, posted or received by you, (ii) any other party’s access or use of the Service using your account credentials, (iii) your breach or violation (or alleged breach or violation) of these Terms, the Seller Agreement, applicable law, rule or regulation, (iv) your Offerings; (v) any misrepresentation or other act or omission by you; (vi) any claims or allegations that your Content infringes, misappropriates or otherwise violates any intellectual property rights or proprietary rights or other rights of any third party; (vii) any fraud, negligence, gross negligence or willful misconduct by you; and/or (viii) any claims or allegations by third parties, including, without limitation, any of your customers or buyers. ShootProof reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, in which event you agree to cooperate with ShootProof in asserting any available defenses.

26. No Warranties

THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET-ENJOYMENT, ACCURACY, TITLE AND/OR NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE TERMS. NO USE OR DISTRIBUTION OF THE SERVICES IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER. NO WARRANTIES ARE CREATED BY ANY COURSE OF DEALING BETWEEN THE PARTIES, TRADE USAGE OR INDUSTRY CUSTOM.

WITHOUT LIMITING THE FOREGOING, SHOOTPROOF AND ITS PROCESSORS, SERVICE PROVIDERS, SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THAT THE SERVICES WILL SECURE OR PROTECT YOUR CONTENT; OR THAT THAT THE SERVICES WILL OPERATE IN THE COMBINATIONS WHICH MAY BE REQUIRED OR WILL PRODUCE THE RESULTS REQUIRED. WE DO NOT WARRANT THAT THE SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM TRANSACTIONS, INTERACTIONS OR DEALINGS BETWEEN YOU AND YOUR CUSTOMERS AND BUYERS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AND OBTAINED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH CONTENT OR YOUR USE OF THE SERVICES. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE OFFERED BY A THIRD PARTY THROUGH OUR SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE.

27. Limitations of Liability and Damages

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SHOOTPROOF, ITS PROCESSORS, SERVICE PROVIDERS, SUPPLIERS, AND LICENSORS (AND EACH OF THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OR EMPLOYEES) SHALL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, LOSS OF CONFIDENTIAL INFORMATION, LOSS OF SOURCE MEDIA AND/OR CONTENT, OR COSTS OF RECREATING LOST SOURCE MEDIA AND/OR CONTENT) OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL SHOOTPROOF BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM (I) HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR SHOOTPROOF ACCOUNT, OR THE INFORMATION CONTAINED THEREIN; (II) ERRORS, MISTAKES, OR INACCURACIES OF THE SERVICES; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR DATA OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR DATA POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES. THE TOTAL AGGREGATE AND CUMULATIVE LIABILITY OF SHOOTPROOF ARISING OUT OF OR RELATED TO THESE TERMS SHALL BE THE AMOUNT OF FEES EARNED BY SHOOTPROOF IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF SHOOTPROOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

28. Governing Law

These Terms shall be governed by Georgia law, without regard to its choice of law or conflicts of law. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. All actions related to these Terms shall take place in Georgia, including any arbitration as contemplated below.

29. Disputes and Arbitration

a. Agreement to Arbitrate. This Section is referred to as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and ShootProof, whether arising out of or relating to these Terms, an Order or in connection with your use of the Services, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court in Atlanta, Georgia, if your claims qualify. You agree that, by agreeing to these Terms, you and ShootProof are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.

b. Prohibition of Class and Representative Actions and Non-Individualized Relief. You and ShootProof agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both you and ShootProof agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).

c. Pre-Arbitration Dispute Resolution. ShootProof is always interested in resolving disputes amicably and efficiently, and most concerns can be resolved quickly and to your satisfaction by emailing ShootProof’s support team at support@shootproof.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to ShootProof should be sent to ShootProof at ShootProof 3101 Cobb Parkway, Suite: 124, Atlanta, GA 30339, Attn: CEO and Legal Department. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If ShootProof and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or ShootProof may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by ShootProof or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or ShootProof is entitled.

d. Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless you and ShootProof agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, ShootProof agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

e. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.

f. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

g. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause (b) above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of clause (b) is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of these Terms will continue to apply.

30. General.

You understand that certain functionality and portions of the Services may only be available to certain customers and that not all functionality and portions of the Services may be available to all customers and all users.

a. Assignment. You may not assign your rights and obligations under these Terms to any third party, and any purported attempt to do so shall be null and void (including in the case of a merger, change of control, asset sale or other similar corporate restructuring). ShootProof may freely assign its rights and obligations under these Terms and transfer, assign or novate these Terms.

b. Force Majeure. ShootProof is not responsible for, and shall have no liability for, any unavailability or delay caused by circumstances beyond its reasonable control, whether or not foreseeable by either party, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, act of terror, pandemics, strikes or other labor problems, internet service provider failures or delays.

c. Entire Agreement. These Terms, our Data Processing Addendum (as applicable), the Seller Agreement (to the extent applicable), and any amendments and any Orders or additional agreements you may enter into with ShootProof constitute the entire agreement and understanding between the parties with respect to the Service, and supersede any previous agreements and understandings. These Terms may NOT be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for products or services which are subject to additional or altered terms and conditions shall be null and void, unless otherwise agreed to in a written agreement signed by you and ShootProof. These Terms and the Seller Agreement are meant to be complimentary. In the event of a conflict between these Terms and the Seller Agreement that cannot be read in a consistent or additive manner, the Seller Agreement shall prevail with respect to terms involving ShootProof Pay, and these Terms shall prevail in all other respects. In the event of conflict between any other ShootProof agreement or policy, these Terms shall prevail. The term “including” shall mean “including, without limitation,” in all instances in these Terms unless the context clearly requires otherwise.

d. Right to Amend. ShootProof reserves the right to amend these Terms at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services, with notice that we deem, in our sole discretion, to be reasonable according to the circumstances. Notice may include notice on our website at ShootProof.com or to the email associated with your ShootProof account. Any use of our Services after publication of any such change shall constitute your acceptance of these Terms as modified and your agreement to abide and be bound by the amended Terms. If you do not agree to, or cannot comply with, the Terms as amended, you must stop using the Services and notify ShootProof. You acknowledge and agree that it is your responsibility to review these Terms periodically and to be aware of any modifications.

e. Severability. The parties intend every provision of these Terms to be severable. If any part of these Terms is not enforceable, the remaining provisions shall remain valid and enforceable. In such case, the parties will in good faith modify or substitute a provision consistent with their original intent. If any remedy fails of its essential purpose, then all other provisions, including the limitations on liability and exclusion of damages, will remain fully effective.

f. No Agency; Third Party Beneficiary. Nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture, or employment relationship between ShootProof and you. Except as expressly set forth in these Terms, at no time shall either party make commitments or incur any charges or expenses for, or in the name of, the other party. Nothing expressed or mentioned in or implied from these Terms are intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to these Terms.

g. Export Control. You may not export the Services directly or indirectly, and you acknowledge that the Services may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII).

h. International Use. Although the Services may be accessible worldwide, ShootProof makes no representation that use of the Services is compliant with foreign law. If you choose to access the Services from other locations, you do so on your own initiative and you are responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with the Services is void where prohibited.

i. Government Sales. If you are a branch or agency of the United States Government or a contractor thereto, the following provision applies. As defined in FAR section 2.101, the Services and related documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of these Terms and will be prohibited except to the extent expressly permitted by the terms of these Terms.

j. No Waiver. Any failure by ShootProof to enforce or exercise any provision of these Terms or related rights shall not constitute a waiver of that right or provision or a waiver of ShootProof’s right to enforce or exercise any such provision of these Terms in the future.

k. Notices. Except for cancellation of your subscription plan, any other notice or demand shall be in writing and addressed to the respective parties, as follows:

If to ShootProof: Except as otherwise provided herein, notice shall be made by registered or certified mail, ShootProof 3101 Cobb Parkway, Suite: 124, Atlanta, GA 30339, Attn: CEO and Legal Department.

If to You: Your affirmative act of accessing or using any portion of the Services or other acceptance of these Terms as described above constitutes your electronic signature to these Terms and your consent to enter into agreements with ShootProof electronically. ShootProof may give notice by means of a general notice on the Services, electronic mail to your email address in your ShootProof account, telephone or text message to any phone number provided in connection with your ShootProof account, or by written communication sent by first class, registered, or certified mail, to any address connected with your ShootProof account. The delivery of any notice from the ShootProof is effective when sent or posted by the Company, regardless of whether your read or views the notice when received or whether you actually receive the delivery.

All contracts completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing.

BY USING THE SHOOTPROOF SERVICES AND/OR ACCEPTING THESE TERMS (OR OTHERWISE BEING BOUND AS DESCRIBED ABOVE), YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT WISH TO BE BOUND BY THE THESE TERMS, PLEASE CEASE ALL FURTHER USE OF THE SERVICES.

Previous Terms of Use: https://shootproof.com/legal/terms-of-use-1