​​Terms of Service - PhotoCircle Premium

Last Updated: May 9, 2024

These PhotoCircle Premium Terms of Service (the “Premium Terms”) are a binding contract between PhotoCircle, Inc. (“PhotoCircle,” “we,” “us,” and/or “our”) and the entity or person agreeing to them (“Customer,” “you,” “your”) and govern the Customer’s access to and use of the PhotoCircle website at photocircleapp.com (the “Site”), the iOS and/or Android PhotoCircle App (the “App”), the web-based workspace to manage the accounts and activity of Workspace Users (the “Workspace,” as defined below), and any other services offered as part of the PhotoCircle platform (collectively with the Site, App, and Workspace, the “Premium Service(s)”).

If you are accepting on behalf of a Customer, you represent and warrant that (i) you have full legal authority to bind the Customer to the Premium Terms; (ii) you have read and understand the Premium Terms; and (iii) you agree on behalf of Customer to these Premium Terms.

Table of Contents

1. Applicable Terms

2. Definitions

3. Your PhotoCircle Premium License

4. Customer Obligations

5. Suspension

6. Guests, Workspace Users, and Others

7. Fees and Billing

8. Term and Termination

9. Disclaimer of Warranties

10. Limitation of Liability

11. Indemnity

12. General

13. Contact Information

1. Applicable Terms

The Premium Services are governed by these Premium Terms and the PhotoCircle Terms of Use (“Terms”). Customers are responsible under these Premium Terms for any failure by its Workspace Users or Guests (as defined below) to comply with the Terms.

In the event of a conflict between these Premium Terms and the provisions of the Terms, these Premium Terms shall prevail.

Custom Terms of Use. We reserve the right to present Customers with terms drafted for their specific needs. If you are interested in entering terms drafted to meet your unique needs, please contact us at support@photocircleapp.com. In such a case, the relationship between PhotoCircle and Customer shall be governed by the custom terms.

2. Definitions

All capitalized terms used in these Premium Terms shall have the meaning given to them in the Terms unless otherwise defined or stated herein.

Admin User			One or more Workspace Users that a Customer designates with the ability to manage a Workspace.Customers must have at least one Admin User.
	Applicable Law	All laws, rules, and governmental regulations applicable to Customer.
	Workspace User	Any User who works for or on behalf of the Premium Account holder and is invited to join a Workspace Circle associated with the Premium Account.Workspace Users may have different roles and permissions that have different features and functionality, as specified in the Documentation.
	Guest	Any User who does not work for or on behalf of the Premium Account holder who invited the User to access a Workspace Circle associated with the Premium Account.
	Fees	The product of the amount of the Premium Services used or ordered by Customer multiplied by the prices stated within the Order Form.
	Order Form	Online order page or pages, or other ordering document acceptable to PhotoCircle under these Premium Terms, issued by PhotoCircle and accepted by PhotoCircle specifying the Premium Services that PhotoCircle will provide to Customer under these Premium Terms.
	Premium Account	A Customer’s subscription to PhotoCircle’s Premium Services.
	Workspace Circle	A Circle created by any Workspace User of the Workspace, under a PhotoCircle Premium Services license.
	Workspace	Separated sections of the Premium Service where Workspace Users may submit, post, or modify Media. Workspaces may have different tiers that have different features and functionality as specified in the Documentation.Workspace includes Workspace Users associated with the Customer’s Premium Account, and all Media contributed to the Workspace is owned by the Customer.

3. Your PhotoCircle Premium License

You acknowledge and agree that the Premium Services, including all associated intellectual property rights, are the exclusive property of PhotoCircle and its licensors.

Conditioned upon your compliance with these Premium Terms and your payment of Fees (defined below), PhotoCircle hereby grants you a limited, non-exclusive, non-transferable license, to:

• Access, view, and use the Premium Services with the number of seats commensurate with your payment of Fees.

• Access and view any Media to which you are permitted access through your Workspace Circles.

Notwithstanding anything to the contrary in these Premium Terms or the Terms, we consent to your use of the Premium Services in a commercial context that is in accordance with these Premium Terms, our Terms, and our Documentation, provided that you may not, and will not, resell, repackage, or otherwise offer any portion of our Services or Premium Services, either directly or indirectly, for commercial purposes as if they were your own products or services.

You have no right to sublicense the license rights granted in this section.

You may not and will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, transmit, broadcast, or otherwise exploit any of our services, products, or offerings, except as expressly permitted in these Premium Terms and as enabled by the Premium Services themselves when used in accordance with these Premium Terms.

No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by PhotoCircle or its licensors, except for the licenses and rights expressly granted in these Premium Terms.

4. Customer Obligations

Compliance. Customer will

(a) ensure that Customer, its Workspace Users, and Guest’s use of the Premium Services complies with the Premium Terms,

(b) use commercially reasonable efforts to prevent and terminate any unauthorized use, or access to, the Premium Services, and

(c) promptly notify us if Customer becomes aware of any unauthorized use of, or access to, the Premium Services. We reserve the right to investigate any potential violation of the Premium Terms, which may include reviewing Customer’s usage of the Premium Services.

Privacy. Customer is responsible for any consents and notices required to permit

(a) Customer’s use and receipt of the Premium Services, and

(b) our accessing, storing, and processing of any data provided by Customer under these Premium Terms in accordance with our Privacy Policy.

Restrictions. Customer will not, and will not allow Workspace Users or Guests to,

(a) copy, modify, or create a derivative work of the Premium Services or Premium Content;

(b) reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of, the Premium Services (except to the extent such restriction is expressly prohibited by applicable law);

(c) sell, resell, sublicense, transfer, or distribute any or all of the Premium Services; or

(d) access or use the Premium Services

(d) access or use the Premium Services:

• for prohibited activities;
• in violation of our Acceptable Use Guidelines;
• in a manner intended to avoid incurring Fees (including sharing Workspace User or Guest accounts with multiple individuals or otherwise attempting to circumvent Premium Service-specific usage limits or quotas);
• in a manner that breaches, or causes the breach of, these Premium Terms.

Administration of Services. Customer may specify through the Workspace one or more Admin Users who will have the right to access the Workspace(s). Customer is responsible for

(a) maintaining the confidentiality and security of the Workspace User accounts, including the Admin User(s), and associated passwords and

(b) any use of the Workspace User accounts. Customer agrees that our responsibilities do not extend to the internal management and administration of the Premium Services for Customers or any Workspace Users or Guests.

Additional User Accounts. We use a flexible payment system that allows you to adjust the number of available seats at any time. If you increase the number of seats above your current seat count, our payment system automatically accounts for this increase and either charges your credit card (if you are using a third-party payment processor) or we will send you an invoice.

Copyright. We respond to notices of alleged copyright infringement in accordance with our Copyright Policy, and we may terminate Workspace User or Guests accounts of repeat infringers in appropriate circumstances as required to maintain safe harbor for online service providers under the U.S. Digital Millennium Copyright Act.

5. Suspension

Violations. If we become aware that Customer’s, Workspace User’s, or Guest’s use of the Premium Services violates our Acceptable Use Guidelines or is a prohibited activity, we will notify Customer and request that Customer correct the violation. If Customer fails to promptly correct the violation, then we may suspend all or part of Customer’s use of the Premium Services until the violation is corrected.

Other Suspension. Notwithstanding the above paragraph, we may immediately suspend all or part of Customer’s use of the Premium Services (including suspending the underlying Workspace Users or Guests) if (a) we reasonably believe the suspension is needed to protect our Premium Services, our infrastructure supporting the Premium Services, or any other customer of the Premium Services (or their Workspace Users or Guests); (b) there is suspected unauthorized third-party access to the Premium Services; (c) we reasonably believe that immediate suspension is required to comply with any applicable laws; or (d) Customer is in breach of these Premium Terms.

6. Guests, Workspace Users, and Others

Guests. If Customer invites a Guest (e.g., consultant, contractor, or agent of Customer, or third parties with which Customer transacts business), Customer is responsible for providing the Guest with necessary disclosures and collecting proper consents to access and use PhotoCircle.

When you invite a Guest to access PhotoCircle:

• You are responsible for ensuring that the Guest abides by PhotoCircle’s Terms.

• You are responsible for ensuring that you have valid permission to share any personal information about the Guest you share with us.

• You are responsible for ensuring that you provide valid permissions to Guests for your use and ownership of Media that Guests provide to the Workspace.

CUSTOMER UNDERSTANDS AND AGREES THAT, AS FURTHER STATED IN THE “FEES AND BILLING” SECTION, GUESTS COUNT TOWARDS CUSTOMER’S FEES CALCULATION.

Workspace Users. When you add a Workspace User to your Premium Account:

• You are responsible for ensuring that the Workspace User abides by PhotoCircle’s Terms.

• The Workspace User’s account will be owned by the Premium Account.

• You are responsible for ensuring that you have the Workspace User’s permission for this transfer of account ownership, if any such transfer occurs.

• You are responsible for ensuring that you have valid permission to share any personal information about the Workspace User you share with us.

• You are responsible for ensuring that you provide valid permissions to Workspace Users for your use and ownership of Media that Workspace Users provide to the Workspace.

Media Transfer Opportunity. If a Workspace User has an existing PhotoCircle Community account that uses the same email address as the email address used to add them to your Workspace, the Workspace User will be provided the option, before accepting the invitation, to move Media associated with that email address to a new PhotoCircle account owned by them.

This is the Workspace User’s sole opportunity to migrate Media before you assume ownership of the Media associated with your PhotoCircle Premium account.

If the Workspace User accepts your invitation, the Workspace User’s existing and future Media will be owned by the Premium Account, and the Media will remain in the Premium Account even after the Workspace User loses authorization (e.g., leaves the Customer’s organization).

Workspace Users cannot delete the Premium Account they were invited to join.

Roles and Permissions for Invited users. Workspace Users may have comprehensive or limited rights to any given Circle or Workspace, depending on the permissions allowed by their role within that Circle or Workspace, as detailed in Documentation.

7. Fees and Billing

Seats. PhotoCircle Premium plans are licensed on a per-seat basis, as detailed in applicable Order Forms and Documentation. Seats are required for anyone you add to your Premium Account, including Workspace Users and Guests.

Usage and Invoicing. Customer will pay all Fees specified in Order Forms. PhotoCircle will invoice Customer all Fees for the Premium Services. PhotoCircle’s measurement tools will be used to determine Customer’s usage of the Premium Services, as detailed in PhotoCircle’s billing policy. The use of the term “PhotoCircle” in this Section includes service providers (e.g., payment processors) engaged on PhotoCircle’s behalf.

Customer may elect a monthly or annually billing option, or from among other options offered by PhotoCircle, when placing their order for the Premium Services. PhotoCircle may change its offering of billing options, including by limiting or ceasing to offer any billing option, upon thirty days’ written notice (which may be by email). Billing options may not be available to all customers. Customer may pay for the services using the payment options listed below.

Monthly Plan. If Customer selects this option, Customer will pay for the Premium Services on a monthly basis. PhotoCircle will bill Customer: (i) Fees based upon Customer’s daily usage of the Premium Services during the preceding month; and (ii) monthly in arrears for its use of the Premium Services.

Annual Plan. If Customer selects this option, Customer will be committed to purchasing the Premium Services from PhotoCircle for an annual term.

Payment. All payments due are in U.S. dollars unless otherwise indicated on an invoice. Customer will provide PhotoCircle with valid and updated credit card information. If Customer provides credit card information to PhotoCircle, Customer authorizes PhotoCircle to charge such credit card for all Fees owed in Customer’s initial subscription term and any renewal subscription term(s). Such charges shall be made in advance, in accordance with the billing frequency indicated by Customer. Invoiced Fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to PhotoCircle of any changes to such information.

Automatic Renewal. These Premium Terms and your obligation to pay Fees automatically renew at the end of each billing cycle.

Contingent on Payment. Your use of PhotoCircle Premium is conditioned on your payment of Fees for the Premium Services.

Suspension for Overdue Fees. We reserve the right to suspend Customer’s access to Premium Services in the event of any unpaid and overdue Fees.

Price Revisions. We reserve the right to increase fees from time to time in our sole discretion. We will notify the Customer at least 30 days in advance of any changes. Customer’s pricing will change at the beginning of Customer’s next billing cycle.

8. Term & Termination

Agreement Term. The term of these Premium Terms (the “Term”) will begin on the date when Customer agrees to the Premium Services (the “effective date”) and continue until the Premium Terms are terminated or not renewed.

Termination by Customer. Customer may stop using the Premium Services at any time. To terminate your PhotoCircle Premium Account, email support@photocircleapp.com.

Termination by PhotoCircle. PhotoCircle may immediately and without notice terminate these Premium Terms with you and suspend or disable your access to the Premium Services if PhotoCircle determines, in its sole discretion, that:

• You, your Workspace Users, or your Guests have breached these Premium Terms.

• You, your Workspace Users, or your Guests have violated applicable laws, regulations, or third-party rights.

• Such action is needed to protect the safety or property of other users, PhotoCircle, or third parties.

• We have reason to believe you, your Workspace Users, or your Guests have violated these Premium Terms.

If we intend to remove your account in accordance with this Section, we will try to provide advance notice to you before we remove your account, but we need not provide notice if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of PhotoCircle to provide such notice.

Effect of Termination or Non-Renewal. If the Premium Terms are terminated or not renewed, then (a) all rights and access to the Premium Services will cease (including Workspace Users’ or Guests’ access to the Premium Services) and (b) all Fees owed by Customer to PhotoCircle are immediately due upon Customer’s receipt of the final electronic bill or as stated in the final invoice.

Provisions that, by their nature, should survive termination of these Terms shall survive any termination of your account.

Media. You can extract all Media by downloading a ZIP file for each Circle from your Workspace.

Comments and reactions cannot be downloaded. You can notify PhotoCircle at onboarding@photocircleapp.com when you’d like us to delete any of your remaining Media in our possession.

We may, but are not obligated to, delete all data relating to terminated accounts at the end of the paid subscription term.

9. Disclaimer of Warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE PREMIUM SERVICES IS ENTIRELY AT YOUR OWN RISK. THE PREMIUM SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, OR THE TEXT, GRAPHICS, OR LINKS.

WE DO NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR-FREE OR THAT THE SERVICES ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.

10. Limitation of Liability

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR:

(A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR DATA BREACH, OR

(B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES (INCLUDING ATTORNEYS’ FEES) IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE TWELVE MONTHS (12) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS.

THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES, OR ANY OTHER ITEMS OR SERVICES PROVIDED BY US, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTY OF NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT THE SERVICES (INCLUDING ANY SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY US IN CONNECTION WITH THE SERVICES) ARE PROVIDED “AS IS” AND THAT WE MAKE NO WARRANTY THAT THE SERVICES WILL BE FREE FROM BUGS, FAULTS, DEFECTS OR ERRORS OR THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED.

11. Indemnity

You agree to indemnify and hold harmless PhotoCircle and its officers, directors, employees, agents, and affiliates (each, an “Indemnified Party”), from and against any losses, claims, actions, costs, damages, penalties, fines, and expenses, including without limitation attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from:

1. your Premium Content;

2. your, a Workspace User’s, or a Guest’s misuse of the Premium Services;

3. your, a Workspace User’s, or a Guest’s violation of these Premium Terms; or

4. your, a Workspace User’s, or a Guest’s violation of any applicable laws, rules or regulations through or related to the use of the Premium Services.

In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the agreements in this Section, you agree to pay for the defense of the Indemnified Party, including reasonable costs and attorneys’ fees incurred by the Indemnified Party. We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services. You agree that the provisions in this Section will survive any termination of your account, these Premium Terms, or your access to the Premium Services.

12. General

Electronic Communication	For contractual purposes, you (1) consent to receive communications from us in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. This subparagraph does not affect your statutory rights.
No Waiver	The failure of PhotoCircle to enforce any right or provision of these Premium Terms will not constitute a waiver of future enforcement of that right or provision.
Assignment	You may not assign or transfer these Premium Terms, by operation of law or otherwise, without PhotoCircle’s prior written consent. Any attempt by you to assign or transfer these Premium Terms without such consent will be null and of no effect. PhotoCircle may assign or transfer these Premium Terms, at its sole discretion, without restriction. Subject to the foregoing, these Premium Terms will bind and insure to the benefit of the parties, their successors, and permitted assigns. These Premium Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.
Severability	If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Premium Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Premium Terms will remain in full force and effect.
Entire Agreement	These Premium Terms constitute the entire agreement between you and PhotoCircle regarding your use of PhotoCircle’s Premium Services, and supersede all prior written or oral agreements. Additional terms may apply to certain products or services. In the event that there is a conflict between these Premium Terms and any additional terms, these Premium Terms will control.
Modification	PhotoCircle reserves the right, at its sole discretion, to modify these Premium Terms at any time and without prior notice. If we materially modify these Premium Terms, as determined by PhotoCircle in its sole discretion, we will either post a notification of the modification on our Site or otherwise provide you with notice of the change. The date of the last modification will also be posted at the beginning of these Premium Terms. It is your responsibility to check from time to time for updates. By continuing to access or use the Premium Service, you are indicating that you agree to be bound by any modified Premium Terms.
Export Controls	You may not use or otherwise export or re-export the Premium Services except as authorized by United States law and the laws of the jurisdiction in which the Premium Services was obtained. In particular, but without limitation, the Premium Services 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 Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Premium Services, 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, missile, or chemical or biological weapons.
Government Licensing	The Premium Services 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 reserved under the copyright laws of the United States.

13. Contact Information

If you have questions about these Premium Terms, please contact us at:

support@photocircleapp.com

PhotoCircle, Inc.
1968 S. Coast Hwy #2844
Laguna Beach CA 92651