1. General Terms
1.1 Your use of the Photofing website (the "Website") and any Photofing products, channels, software, data feeds and services, including the Photofing Tour Creator (the “Tour Creator”), Photofing iOS App (the “iOS App”), Photofing Viewer (the “Viewer”) as standalone or embedded, provided to you on or from or through the Website or otherwise by Photofing (collectively the "Service") is subject to the terms of a legal agreement between you and Photofing. "Photofing" means Photofing OÜ, whose principal place of business is at Sirbi 15-2, Tallinn, Estonia
1.2 The Terms form a legally binding agreement between you and Photofing in relation to your use of the Service. It is important that you take the time to read them carefully.
1.3 The Terms apply to all users of the Service, including users who are also contributors of Content, on the Service. "Content" includes the text, software, scripts, graphics, photos, images, sounds, music, videos, audiovisual combinations, interactive features and other materials you may view on, access through or contribute to the Service.
2. Accepting the Terms
2.1 In order to use the Service, you must firstly agree to the Terms. You may not use the Service if you do not accept the Terms.
2.2 You can accept the Terms by checking the “I agree with Photofing terms” check box when creating your Photofing account. You understand that by checking that box Photofing will view this as your acceptance of the Terms from that point onwards. You are also required to accept the terms each time you purchase a tour.
2.3 You may not use the Service and may not accept the Terms if (a) you are not of legal age to form a binding contract with Photofing, or (b) you are a person who is either barred or otherwise legally prohibited from receiving or using the Service under the laws of the country in which you are resident or from which you access or use the Service.
2.4 You should print off or save a local copy of the Terms for your records.
3. Changes to the Terms
3.1 Photofing reserves the right to make changes the Terms from time to time, for example to address changes to the law or regulatory changes or changes to functionality offered through the Service. Therefore you must look at the Terms regularly to check for such changes.
4. Photofing accounts
4.1 In order to use the Service, you must create a Photofing account. When creating your account, you must provide accurate and complete information. It is important that you must keep your Photofing account password secure and confidential.
4.2 You must notify Photofing immediately of any breach of security or unauthorised use of your Photofing account that you become aware of.
4.3 You agree that you will be solely responsible (to Photofing, and to others) for all activity that occurs under your Photofing account.
5. General restrictions on use
5.1 Subject to your compliance with the Terms, Photofing hereby grants you permission to access and use the Service, subject to the following express conditions, and you agree that your failure to adhere to any of these conditions shall constitute a breach of these Terms on your part:
you agree not to distribute any part of or parts of the Website or the Service, including but not limited to any Content, in any medium without Photofing's prior written authorisation, unless Photofing makes available the means for such distribution through functionality offered by the Service (such as the Viewer) provided that you ensure such distribution is compliant with the Terms, all applicable laws and the terms governing any websites to which the Content is distributed;
you agree not to alter or modify any part of the Website or any of the Service (including but not limited to the Photofing Tour Creator, Photofing iOS App, and Photofing Viewer and its related technologies);
you agree not to access Content through any technology or means other than the Photofing Tour Creator, the Photofing iOS App, the Website itself, the Photofing Viewer, or such other means as Photofing may explicitly designate for this purpose;
you agree not to (or attempt to) circumvent, disable or otherwise interfere with any security related features of the Service or features that (i) prevent or restrict use or copying of Content or (ii) enforce limitations on use of the Service or the content accessible via the Service;
you agree not to use the Service (including the Photofing Tour Creator, the Photofing iOS App and Photofing Viewer) for any commercial use, including without limitation the following uses, unless you obtain Photofing’s prior written approval:
the sale of access to the Service
the sale of advertising, sponsorships or promotions placed on or within the Service, or Content;
the sale of advertising, sponsorships or promotions on any page of an ad-enabled blog or website containing Content delivered via the Service unless other material not obtained from Photofing appears on the same page and is of sufficient value to be the basis for such sales.
if you use the Photofing Viewer on your website you may not modify, build upon or block any portion or functionality of the Photofing Viewer
you agree not to use or launch any automated system (including, without limitation, any robot, spider or offline reader) that accesses the Service in a manner that sends more request messages to the Photofing servers in a given period of time than a human can reasonably produce in the same period by using a publicly available, standard (i.e. not modified) web browser;
you agree not to collect or harvest any personal data of any user of the Website or any Service (and agree that this shall be deemed to include Photofing account names);5.2 You agree that you will comply with all of the other provisions of the Terms at all times during your use of the Service.
5.4 Photofing is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Service which Photofing provides may change from time to time without prior notice to you.
5.5 As part of this continuing innovation, you acknowledge and agree that Photofing may stop (permanently or temporarily) providing the Service (or any features within the Service) to you or to users generally at Photofing's sole discretion, without prior notice to you. You may stop using the Service at any time. You do not need to specifically inform Photofing when you stop using the Service.
5.6 You agree that you are solely responsible for (and that Photofing has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which Photofing may suffer) of any such breach.
6. Copyright policy
6.1 Photofing operates a clear copyright policy in relation to any Content which is alleged to infringe the copyright of a third party.
6.2 As part of Photofing's copyright policy, Photofing will terminate user access to the Service if a user has been determined to be a repeat infringer. A repeat infringer is a user who has been notified of infringing activity more than twice.
7.1 As a Photofing account holder you may submit Content. You understand that whether or not Content is published, Photofing does not guarantee any confidentiality with respect to Content.
7.2 You retain all of your ownership rights in your Content, but you are required to grant limited licence rights to Photofing and other users of the Service. These are described in paragraph 8 of these Terms (Rights you licence).
7.3 You understand and agree that you are solely responsible for your own Content and the consequences of posting or publishing it. Photofing does not endorse any Content or any opinion, recommendation, or advice expressed therein, and Photofing expressly disclaims any and all liability in connection with Content.
7.4 You represent and warrant that you have (and will continue to have during your use of the Service) all necessary licenses, rights, consents, and permissions which are required to enable Photofing to use your Content for the purposes of the provision of the Service by Photofing, and otherwise to use your Content in the manner contemplated by the Service and these Terms.
7.5 You hereby warrant and represent that: (i) you are the sole owner of and/or hold all rights in and to your Content; (ii) there are no restrictions, limitations which prevent or restrict you from granting the licenses herein; and (iii) your Content will not: (a) facilitate or promote illegal activity, or contain content that is illegal; (b) contain content that is defamatory, misleading, fraudulent, obscene, distasteful, racially or ethnically offensive, harassing, or that is discriminatory based upon race, gender, colour, creed, age, sexual orientation, or disability; (c) contain sexually suggestive or explicit content; (d) infringe upon or violate any right of any third party; (e) disparage, defame, or discredit Photofing or any third party; (f) contain any virus, viruses, worms, trojan horses and other disabling or damaging codes; or (g) otherwise contain content that violates any laws, rules, regulations or policies of any competent jurisdiction. You agree to defend, indemnify and hold harmless Photofing and its officers, directors, employees, shareholders, customers, agents, successors and assigns from and against any and all loss, damage, settlement or expense (including reasonable legal expenses) from and against any claim arising from breach of your representations and warranties set forth in these Terms.
7.6 You agree that you will not post or upload any Content which contains material which it is unlawful for you to possess in the country in which you are resident, or which it would be unlawful for Photofing to use or possess in connection with the provision of the Service.
7.7 You agree that Content you submit to the Service will not contain any third party copyright material, or material that is subject to other third party proprietary rights (including rights of privacy or rights of publicity), unless you have a formal licence or permission from the rightful owner, or are otherwise legally entitled, to post the material in question and to grant Photofing the licence referred to in paragraph 8.1 below.
7.8 On becoming aware of any potential violation of these Terms, Photofing reserves the right (but shall have no obligation) to decide whether Content complies with the content requirements set out in these Terms and may remove such Content and/or terminate a User's access for uploading Content which is in violation of these Terms at any time, without prior notice and at its sole discretion.
7.9 You further understand and acknowledge that in using the Service, you may be exposed to Content that is factually inaccurate, offensive, indecent, or otherwise objectionable to you. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Photofing with respect to any such Content.
8. Rights you licence
8.1 When you upload or post Content to Photofing, you grant:
to Photofing, a worldwide, non-exclusive, royalty-free, transferable licence (with right to sub-licence) to use, reproduce, distribute, prepare derivative works of, display, make available to the public, broadcast and publically perform that Content in connection with the provision of the Service and otherwise in connection with the provision of the Service and Photofing's business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels;
to each user of the Service, a worldwide, non-exclusive, royalty-free licence to access your Content through the Service, and to use, reproduce, distribute, prepare derivative works of, display and perform such Content to the extent permitted by the functionality of the Service and under these Terms.
8.2 The above licenses granted by you in Content terminate when you remove or delete your Content from the Tour Creator. The above licenses granted by you in textual comments you submit as Content are perpetual and irrevocable, but are otherwise without prejudice to your ownerships rights, which are retained by you as set out in paragraph 7.2 above.
9. Photofing content on the Website
9.1 With the exception of Content submitted to the Service by you, you are not granted any right and/or license, or ownership including any copyright, trade mark and other intellectual property rights to any Content, other than as explicitly set forth in these Terms. Any third party trade or service marks present on Content not uploaded or posted by you are trade or service marks of their respective owners. Such Content may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purpose whatsoever without the prior written consent of Photofing or, where applicable, Photofing's licensors. Photofing and its licensors reserve all rights not expressly granted in and to their Content.
10. Links from Photofing
10.1 The Service may include hyperlinks to other web sites that are not owned or controlled by Photofing. Photofing has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites.
10.2 You acknowledge and agree that Photofing is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such websites or resources.
10.3 You acknowledge and agree that Photofing is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
11. Ending your relationship with Photofing
11.1 The Terms will continue to apply until terminated by either you or Photofing as set out below.
11.2 If you want to terminate your legal agreement with Photofing, you may do so by (a) notifying Photofing at any time and (b) closing your Photofing account. Your notice should be sent, in writing, to Photofing's address which is set out at the beginning of these Terms.
11.3 Photofing may at any time terminate its legal agreement with you if:
you have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or
Photofing is required to do so by law (for example, where the provision of the Service to you is, or becomes, unlawful); or
11.4 Photofing may terminate its legal agreement with you if:
Photofing is transitioning to no longer providing the Service to users in the country in which you are resident or from which you use the Service; or
the provision of the Service to you by Photofing is, in Photofing's opinion, no longer commercially viable
and in the case of each of A and B of this clause 11.4 shall, where possible, give reasonable notice of such termination.
11.5 When these Terms come to an end, all of the legal rights, obligations and liabilities that you and Photofing have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of paragraph 14.6 shall continue to apply to such rights, obligations and liabilities indefinitely.
12. Exclusion of Warranties
12.1 Nothing in the Terms shall affect any statutory rights which you are always entitled to as a consumer and that you cannot contractually agree to alter or waive.
12.2 The Service is provided "as is" and Photofing makes no warranty or representation to you with respect to them.
12.3 In particular Photofing does not represent or warrant to you that:
your use of the Service will meet your requirements,
your use of the Service will be uninterrupted, timely, secure or free from error,
any information obtained by you as a result of your use of the Service will be accurate or reliable, and
that defects in the operation or functionality of any software provided to you as part of the Service will be corrected.
12.4 TO THE MAXIMUM EXTENT PERMITTED BY LAW, Photofing DISCLAIMS ALL CONDITIONS, WARRANTIES OR OTHER TERMS OF ANY KIND (INCLUDING WITHOUT LIMITATION ANY EXPRESSED AND/OR IMPLIED TERMS AS TO SATISFACTORY QUALITY, FITNESS FOR PURPOSE OR CONFORMANCE WITH DESCRIPTION AND/OR NON-INFRINGEMENT) THAT MAY APPLY TO THE SERVICE EXCEPT TO THE EXTENT THAT THEY ARE EXPRESSLY SET OUT IN THE TERMS.
13. Limitation of Liability
13.1 Nothing in these Terms shall exclude or limit Photofing's liability for losses which may not be lawfully excluded or limited by applicable law.
13.2 Subject to the overall provision in paragraph 13.1 above Photofing shall not be liable to you for:
ANY INDIRECT OR CONSEQUENTIAL LOSSES WHICH MAY BE INCURRED BY YOU. THIS SHALL INCLUDE ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, OR ANY LOSS OF DATA SUFFERED BY YOU;
any loss or damage which may be incurred by you as a result of:
any reliance placed by you on the completeness, accuracy or existence of any advertising, or as a result of any relationship or transaction between you and any advertiser or sponsor whose advertising appears on the Service;
any changes which Photofing may make to the Service, or for any permanent or temporary cessation in the provision of the Service (or any features within the Service);
the deletion of, corruption of, or failure to store, any Content and other communications data maintained or transmitted by or through your use of the Service;
your failure to provide Photofing with accurate account information;
your failure to keep your password or Photofing account details secure and confidential.
Photofing’S LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED FEES PAID BY YOU TO Photofing IN CONNECTION WITH THE SERVICE HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM; OR TO THE EXTENT NO SUCH FEES APPLY, Photofing SHALL HAVE NO LIABILITY WHATSOEVER.
13.3 The limitations on Photofing's liability to you in paragraph 13.2 above shall apply whether or not Photofing has been advised of or should have been aware of the possibility of any such losses arising.
14. General legal terms
14.1 The Terms constitute the whole legal agreement between you and Photofing and govern your use of the Service and completely replace any prior agreements between you and Photofing in relation to the Service.
14.2 You agree that Photofing may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Service.
14.3 You agree that if Photofing does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Photofing has the benefit of under any applicable law), this will not be taken to be a formal waiver of Photofing's rights and that those rights or remedies will still be available to Photofing.
14.4 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
14.6 The Terms, and your relationship with Photofing under the Terms, shall be governed by Estonian law. You and Photofing agree to submit to the exclusive jurisdiction of the courts of Estonia to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that Photofing shall still be allowed to apply for injunctive remedies (or other equivalent types of urgent legal remedy) in any jurisdiction.
15. Refund policy
15.1 Photofing does not process refunds unless obligated by law.