References to "PhotoFi", "we" and "us" refer to Swazie, LLC and include our affiliates. The Services are owned by Swazie, LLC. Reference to the Services include the software (the "Application") installed on a Device (as hereinafter defined) used to operate the services, and other information used in connection with the Services. Reference to "you" refers to the owner or lessee of the Device. You are permitted to use the Services under license from us subject to compliance with these terms and conditions of use. The Services may also include materials owned by third-parties by virtue of a license, grant or some other form of agreement between the third-party and PhotoFi.
The Services are licensed, not sold, to you for use only under the Terms of Service. PhotoFi, as the licensor, reserves all rights not expressly granted to you. This license granted to you for the Services by PhotoFi include a non-exclusive, non-transferable license to use the Application on any computer, mobile or other device you own or lease. You may not rent, lease, lend, sell, redistribute or sublicense the Services. You may not copy (except as expressly permitted by this license), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Services, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Services). Any attempt to do so is a violation of the rights of PhotoFi and its licensors. If you breach this restriction, you may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by PhotoFi that replace and/or supplement the original Service, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
You do not acquire under the Terms of Service any intellectual property or other proprietary rights, including without limitation, any patents, inventions, improvements, designs, trademarks, including any applications for same, copyright, rights in any confidential information or trade-secrets, in or relating in any way to the Service. Any grants not expressly granted herein are reserved.
Except where otherwise specified, the contents of the Service are copyright ©2022 Swazie, LLC with all rights reserved. The contents of the Service are subject to protection under U.S. and foreign copyright laws. You are not permitted to use the copyrighted content outside of the normal functions of the Service without the prior written consent of PhotoFi.
Upon your breach of the license, the Terms of Service shall terminate immediately, and you will immediately cease use of the Services.
PhotoFi has the right to force your forfeiture of any username that becomes inactive, violates laws, or may mislead other users.
3. Guidelines and Prohibitive Activities
PhotoFi is committed to providing Services that maintain your trust and confidence. In return, we require that you use the Services responsibly. You will use the Services only for purposes that are legal and proper, in accordance with the Terms of Services.
4. Acceptable Use of Services
5. Live Stream
Through the live streaming account feature, you may live stream content (the "Live Content") through PhotoFi, and you may be provided with the option of archiving the Live Content for subsequent viewing (the "Archived Content"). The Live Content must comply with PhotoFi's Guidelines set forth in Section 3. Notwithstanding anything to the contrary in the Terms of Service, you represent and warrant that you have all necessary rights for the exploitation of the Live Content on PhotoFi throughout the world, including, without limitation, music licensing rights from artists, record labels, publishers (including public performance licenses) and any other royalty participants. You agree to comply with all applicable laws, rules and regulations regarding the Live Content. The Live Content and the Archived Content, if any, will constitute "Provider Content", "Original Channel Content" or "Your Content" as applicable, and are subject to the Terms of Service. You acknowledge and agree that PhotoFi's live stream feature may be turned off at any time for any reason in our sole discretion.
Prohibited Live Stream Practices on PhotoFi:
6. Subscription Plans and Payment Methods
7. Consent to Use of Data
You agree that PhotoFi may collect and use technical data and related information, including but not limited to your email, first and last name, telephone number, and photograph, that is gathered to facilitate the provision of services to be provided hereunder as well as software updates, product support and other services to you and other users of the Services. PhotoFi may use this information, as long as it is in a form that does not personally identify you or your business, to improve its products or to provide services or technologies to you and other users of the Services.
8. Mobile Network Charges; Device Damage
PhotoFi is not responsible for your mobile phone or device or the mobile network, which are each provided by your mobile network provider under your separate contracts with them. You will be responsible for charges from the mobile network provider for the data services you use to access the Services. You are responsible for any loss or damage to any Device provided to you in connection with the License caused by you or your employees.
9. Trademarks and Logos
PhotoFi and the PhotoFi logo are trademarks of Swazie, LLC. These trademarks together with any other(s) owned by Swazie, LLC may not be reproduced, used, modified or distributed without prior permission.
10. Disclaimer of Warranties and Liability
While PhotoFi does its best to ensure the optimum performance of the Services, you agree that you use the Services and rely on content contained in the Services at your own risk. PhotoFi assumes no legal duty regarding the conduct of you or any third-party who is affected by your use of the Services. PhotoFi may suspend the availability of the Services at any time to update the Services or for any other technical reasons.
11. No Warranties
PhotoFi does not give any warranties in respect of the network, content, software or services used in conjunction with the Services. In particular, the Services are provided on an "as is", "with all faults" and "as available" basis, with no representation as to accuracy, availability or usability. To the extent allowed by applicable law, PhotoFi herby disclaims all warranties, conditions or duties of every nature whatsoever (except any duties of good faith), including without limitation, any implied warranties of merchantability or of fitness for a particular purpose, any express or statutory warranties, and any warranties or duties regarding accuracy, timeliness, completeness, performance, lack or negligence or of workmanlike effort. Additionally, PhotoFi makes no warranty that the Services are free from infection by viruses or anything else that has contaminating or destructive properties.
12. No Incidental or Consequential Damages
To the full extent allowed by applicable law, you agree that PhotoFi will not be liable to you and/or any third-party for any consequential or incidental damages (including but not limited to lost profits, loss of privacy or for failure to meet any duty including but not limited to any duty of good faith, lack or negligence or lack of workmanlike effort) or for any other indirect, special, or punitive damages whatsoever that arise out of or are related to the Services or their content or to any breach of the terms of this License by PhotoFi, even if PhotoFi has been advised of the possibility of such damages and even in the event of fault, tort (including negligence) or strict liability.
13. Limitation on Damages; Exclusive Remedies
You agree that your only recovery for any damages that you incur, and your exclusive remedy, shall be limited to the direct damages you actually incur in reasonable reliance on the Services up to a limit of the following, at PhotoFi's election: (1) a refund of the amount you paid to purchase PhotoFi (if any) in total during the year in which the damage is first incurred, less any reasonable allowance for complying services, or (2) correction or replacement of the Services. All limitations will apply to all legal and equitable theories.
You agree to indemnify and hold Swazie, LLC (including its affiliates, and their respective directors, officers, agents, employees, partners and other licensees) harmless from any claim or demand, including reasonable legal fees, made by any third-party due to or arising out of your use of the Services, your connection to the Services, your violation of this License, your conduct, an act or omission that occurred on your property or while operating a vehicle, or your violation of any rights of another.
The Services may contain links to other websites and applications provided by independent third parties ("Third-Party sites"). Where possible, PhotoFi will make clear where such links are being made, though Third-Party sites may be co-branded with PhotoFi and so include PhotoFi's trademarks. PhotoFi is not responsible for the availability or content of Third-Party sites and will not be a party to, or in any way responsible for, any transaction concerning goods or services available from such Third-Party sites.
16. Changes to Terms of Service
Due to its policy of updating and improving the Services, PhotoFi may wish to change these terms (including those relating to your use of the Service). PhotoFi reserves the right to modify these terms through the update of the Terms of Service without notice at any time. It is therefore important that you read this document regularly to ensure you are updated as to any changes. To the extent that such changes are reflected in any modification to the Terms of Service published with any upgrade or update to the Services you will be deemed to have accepted these modified terms at the time of acceptance and use of such update or upgrade to the Services.
17. Advertising and Sponsorship
The Services may contain, incorporate or integrate with external providers of advertising, sponsorship and other digital media assets. The providers and publishers of such content are responsible for ensuring that material submitted for inclusion on the network complies with international and national law. PhotoFi will not be responsible to you or any other person for any claim relating to the content of or for any error or inaccuracy in any digital material displayed within or in association with the Services.
You may not use or otherwise export or re-export the Service except as authorized by United States law and the laws of the jurisdiction in which the Service was obtained. In particular, but without limitation, the Service may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Service, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
20. U.S. Government Restricted Rights
The Service and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States.
21. Applicable Law
The laws of the State of Ohio, excluding its conflicts of law rules, govern this license and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws. The sole and exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in Columbus, Ohio. Both you and Swazie consent to the jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by Ohio state or federal law.
You may not assign, sub-license or otherwise transfer any of your rights under these Terms of Service or your rights to access and use the Services. PhotoFi may assign these Terms of Service upon notice to you.
If any provisions of the Terms of Service are found to be invalid by any court having competent jurisdiction, the invalidity of that provision will not affect the validity of the remaining provisions of the Terms of Service, which shall remain in full force and effect.
Any waiver of the provisions of these Terms of Service by PhotoFi must be in writing. Failure by either party to exercise any right or remedy under these Terms of Service does not constitute a waiver of that right or remedy.
Headings in these terms are for convenience only and will have no legal meaning or effect.
23. Other Clauses
24. Equitable Remedies
You hereby agree that if the terms of these Terms of Service are not specifically enforced, PhotoFi will be irreparably damaged, and therefore you agree that PhotoFi shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to any of this Terms of Service, in addition to any other available remedies.
All notices or other communications required to be given hereunder shall be in writing and delivered either personally or by U.S. mail, certified, return receipt requested, postage prepaid, and addressed as set forth below or as otherwise requested by the receiving Party. Notices delivered personally shall be effective upon delivery and notices delivered by mail shall be effective upon their receipt by the Party to whom they are addressed.
Swazie, LLC (PhotoFi)
530-B Harkle Road Ste. 100
Sante Fe, NM 87505
26. Entire Agreement
Except as otherwise provided, herein, this Agreement constitutes the entire agreement between the parties respecting the Services, and there are no provisions, representations or collateral agreements between the parties other than as set out in this Agreement. PhotoFi reserves the right to make changes to this Agreement by providing you with notice of the change by including it in an update to the Service or by any other reasonable method. If you continue to use the Service after notice of the change has been given, you shall be deemed to have accepted this change.
The Swazie, LLC ("PhotoFi") Creator Badge terms and conditions (the "Creator Badge Terms") govern your (any participating individual or entity is referred to as "you," "your," or "Creator") participation in the Creator Badge Program (the "Program") on PhotoFi. These Creator Badge Terms incorporate and are expressly subject to PhotoFi's Terms of Service. In the event of any actual conflict between these Creator Badge Terms and the Terms of Service, these Creator Badge Terms will control during the Term (defined below), solely with respect to Creator's participation in the Program. Upon expiration or termination of the Program or Creator's participation in the Program, the Policies will remain in effect and continue to apply to Creator's use of PhotoFi.
To apply, you must submit a complete Program application. PhotoFi will evaluate Creator's application and eligibility and will notify Creator of their acceptance or rejection, which shall be determined by PhotoFi in its sole discretion. PhotoFi may reject an application if PhotoFi determines (in its sole discretion) that Creator does not meet the eligibility requirements of the Program or is otherwise not in compliance with the Terms of Service. If Creator's application is rejected, Creator may re-apply, but Creator must wait 30 days after delivery of the rejection notice before re-applying.
PhotoFi is not responsible for any incorrect or inaccurate information supplied by any Creator. You represent and warrant that all application information you submit is truthful and accurate, and that you will maintain the accuracy of such information at all times.
By applying for and participating in the Program, Creator agrees as follows:
At all times during participation in the Program, only those Creators meeting all of the following requirements are eligible to participate in the Program:
PhotoFi reserves the right to add or modify eligibility requirements in its sole discretion.
The Term of this Agreement shall begin on the Effective Date and last for one (1) year, unless terminated as set forth below. This Agreement will automatically renew for successive one (1) year periods, unless terminated as set forth below.
Subject to Creator's compliance with these Creator Badge Terms and Terms of Services at all times during the Term and confirmation by PhotoFi that Creator's PhotoFi account is in good standing, Creator may accept monetary donations via Creator's icon badge based on Creator's total legitimate, unique video views for eligible User Content that complies with these Creator Badge Terms ("Video Views"). This excludes views that PhotoFi determines in its sole discretion are (i) artificially produced or obtained, (ii) paid or incentivized views, (iii) the Creator's own views or those acting in concert with Creator to inflate video views, or (iv) otherwise in violation of these Creator Badge Terms, including any attempts to manipulate platform mechanisms to increase interaction metrics, as solely measured by PhotoFi. All statistics regarding the number of Video Views are based solely on PhotoFi data, and subject to PhotoFi's sole discretion regarding eligibility of content or views.
Creator agrees and acknowledges that Creator has sole responsibility and liability for any and all taxes, contributions, commissions, or other sums arising out of payments from third-party service providers. From time to time, and in PhotoFi's sole discretion, PhotoFi may modify the payment structure on a prospective basis and/or offer other methods of accruing payment.
Within thirty (30) days of the close of the prior monthly reporting period, Creator's payment shall be calculated and payable in U.S. dollars via PhotoFi's third-party service provider so long as Creator complies with these Creator Badge Terms. PhotoFi shall receive 30% (thirty percent) of the accrued monthly proceeds while Creator shall receive the remaining 70% (seventy percent). PhotoFi reserves the right to modify the above percentage break-down at any time.
PhotoFi may terminate or suspend Creator's participation in the Program immediately in its sole discretion: (a) if Creator breaches these Creator Badge Terms or Terms of Services, including, without limitation, for failure to meet or maintain the eligibility requirements; (b) if Creator becomes involved in any situation or occurrence that could reflect unfavorably upon Creator or PhotoFi (including the Platform, the Program, or any employees of PhotoFi); and (c) without cause for any reason. In addition, any breach of these Creator Badge Terms, shall cause Creator's donation icon to be subject to removal by PhotoFi.
Furthermore, in the event that PhotoFi at any time determines in its sole discretion that any Video Views or related content are (i) artificially produced or obtained and/or (ii) paid or incentivized views, PhotoFi may suspend or cancel Creator's participation.
Termination will become effective upon PhotoFi's delivery of a termination notice through the Program. Creators that are terminated from the Program for cause are ineligible to re-apply for participation in the Program, at PhotoFi's sole discretion.
You may terminate your participation in the Program at any time by following the cancellation process set forth on the PhotoFi Creator Badge Page accessible via PhotoFi's website and/or Application.
Creator represents and warrants: (a) Creator is over the age of 18 or age of legal majority in their place of legal residence (if an individual), and otherwise has full right, power, and authority to enter into these Creator Badge Terms on behalf of themselves and any entity for whom they are acting; (b) Creator has read, understands, and agrees to follow the Creator Badge Terms and Terms of Services; (c) Creator will make any required payments to any third parties required with respect to Creator's User Content and no payment to any third-party shall be due by PhotoFi for the activities described in these Creator Badge Terms; (d) Creator shall not solicit or employ the use of any method, software, automated script, technology which attempts to artificially increase views or interactions with Creator's User Content, including for purposes of inflating the number of Video Views or amounts payable hereunder; and (e) Creator's participation in the Program will not violate any contract or agreement that Creator is a party to or otherwise bound by, or otherwise interfere with any third-party rights or obligations.
Subject to the terms of this section, the details of any reporting metrics that may be provided by PhotoFi or other non-public information contained or resulting from this Program shall be kept strictly confidential by Creator and not published or shared with any third party, except to legal or professional advisors under an obligation of confidentiality.
Creator understands that PhotoFi may issue an official press release relating to the Program and Creator's participation in the Program, provided any inclusion of Creator will be subject to Creator's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
Notwithstanding the foregoing, PhotoFi reserves the right to publicly designate Creator as a participant in the Program, and Creator represents and warrants that Creator shall clearly and conspicuously disclose Creator's participation in the Program when making any endorsement of PhotoFi (including a disclosure, such as an ad or other organic disclosure, placed in copy, in voiceover in a video, or through superimposed script on an image, as applicable, that communicates to a viewer that Creator participates in the PhotoFi Creator Badge and receives payment from PhotoFi), whether in User Content posted on PhotoFi, or in content posted in third-party media.
The parties acknowledge that their relationship is that of independent contractors and nothing contained in these Terms will be deemed to create or be construed as creating any partnership, joint venture, or employment relationship with PhotoFi or any third party. Creator agrees that Creator is not an employee of PhotoFi and is not entitled to (and also hereby waives to the maximum extent allowed by law) any benefits provided or rights guaranteed by PhotoFi, or by operation of law, to its respective employees, including but not limited to group insurance, liability insurance, disability insurance, vacation, leave, retirement plans, or unemployment insurance.
PhotoFi may modify any of the terms and conditions contained in these Creator Badge Terms, at any time and in its sole discretion. PhotoFi will make efforts to provide notice to Creator of any Program modifications; provided, however, that PhotoFi is not responsible for Creator's failure to receive notice of changes, and Creator agrees to review any updated Creator Badge Terms to ensure that Creator is familiar with the most recent version of such Creator Badge Terms and Terms of Service. Creator's continued participation in the Program following the public posting of updated Creator Badge Terms to Creator shall constitute Creator's acceptance of the updated Creator Badge Terms. If Creator does not agree to any updated Creator Badge Terms or Terms of Service, Creator may terminate their participation in the Program at any time.
The failure of PhotoFi to exercise any rights granted herein upon the occurrence of any of the contingencies set forth in these Creator Badge Terms shall not constitute a waiver of such rights. Creator may not assign, transfer, or delegate any rights or obligations contained in these Creator Badge Terms. PhotoFi may assign these Creator Badge Terms at its option without prior notice to Creator.