Welcome to Fotoee! You are now reading our Terms of Service , an agreement governing your use of our mobile device application our website and our marketplace services and related payment processing services, accessible via our App, which enable you to connect with consumers and to promote and sell your goods and services. To make these Terms easier to read, our App, Site, and marketplace services are collectively called the “Services.” We want you to feel comfortable using the Services and will happily answer any questions you have. Agreement to Terms As noted above, please read these Terms carefully before you use our Services. By signing up as a seller and by using our Services, you agree to be bound by these Terms. If you don’t agree to these Terms, please do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity. You also agree to comply with Fotoee’s operating rules, policies and procedures that may be published from time to time on the Site or App by Fotoee and presented to you, each of which is incorporated herein by reference to these Terms in such operating rules, policies and procedures and each of which may be updated by Fotoee from time to time without advance notice to you. Changes to Terms or Services We may modify these Terms from time to time. If we do so, we’ll let you know either by posting the modified Terms on the App, the Site, or through other communications to you. It’s important that you review the modified Terms because if you continue to use the Services after we’ve let you know that the Terms have been modified, you’re telling us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms then you’re not allowed to use the Services any more. We’re always striving to make the Services better and because our Services are evolving over time, we may change or discontinue all or any part of the Services. This change may happen at any time and without advance notice. e.g. we might stop providing a feature that our users don’t like or use very often. Who May Use the Services You may use the Services only if you meet any applicable age requirement under the laws of the region or country in which you reside and are capable of forming a binding contract with us, and are not barred from using the Services under applicable law. Relationship You and Fotoee are independent contractors and nothing in these Terms establishes an employment, partnership, sales representative, franchise, or joint venture relationship between you and Fotoee. Neither you nor Fotoee will have the right or authority, whether express or implied, to bind the other party by contract, or incur any obligation on the other party’s behalf and you agree that you won’t make any statement, whether verbally, digitally or otherwise to the contrary. Oh and we know that you may also sell your Items elsewhere so these Terms don’t create an exclusive relationship between you and Fotoee. Types of Transactions When a Buyer places an Order for an Item from your Shop that is not out of stock based on the inventory count in your Shop, you enter into an agreement with the Buyer for sale of the Item included in the Order. You acknowledge and agree that you, and not Fotoee, will be responsible for performing the obligations of any contracts (written or oral) that you enter into with the Buyers, and Fotoee is not a party to such contracts and disclaims all liability arising from or related to such contracts. You and not Fotoee, are responsible for honoring any confirmed Orders and you agree that delivery of Items and passing title to Buyers is solely your responsibility. In some cases you can offer Buyers the option of paying you for Items without using the Services. This means that the Buyer will pay you directly. We will not remit any funds to you for such Items, we will not collect any payment from the Buyer for these items, and title to the Items will pass from you to Buyer directly and not to Fotoee first. In this case, you acknowledge and agree that you, and not Fotoee, will be responsible for performing the obligations of any contracts (written or oral) that you enter into with the Buyers, and Fotoee is not a party to such contracts and disclaims all liability arising from or related to such contracts. Any of the financial terms referenced in these Terms do not apply to any payments made by the Buyer to you in transactions where the Services are not used. Cancellation, Return and Refund; Dispute with a Buyer You may cancel an Order before the transaction is completed, i.e. before you receive the payment for the Order, by using the cancel transaction function on the “Orders” page of your Account. The Buyer will receive a cancellation notice from the Services. Where applicable, Buyers will be directed to you for how to cancel an existing Order, return Items to, and/or obtain refund from you, and you agree to address these requests with the Buyers directly. Fotoee will not address any dispute between you and any Buyers, except as we deem appropriate, and in our sole discretion. Notwithstanding the foregoing, we may provide assistance to Sellers as we deem appropriate, in our sole discretion. Fees Opening up a Shop and adding Items to your Shop on Fotoee is free. However, the third party payment processing service providers we may use to provide the Services may charge a fee for each payment they process. Therefore, we will charge you a fee for each transaction to pay for these payment processing services, if applicable. For each transaction, that Fotoee facilitates, you hereby specifically authorize Fotoee to deduct the fee we charge in your geographic region according to our Fee Schedule from the pre-tax price you charge for all the Items in that transaction (“Fees”). Fees will be charged in the currency specified in the Fee Schedule for the applicable geographic regions. We may refund the Fees charged for certain transactions in our discretion. Taxes You are solely responsible for providing Fotoee or its third party payment processing service providers with sufficient information to calculate any sales, use, value added or other applicable taxes, tariffs or duties (excluding any taxes based on Fotoee’s net income) (“Taxes”) in connection with the sale of Items by you. Fotoee or its third party payment processing service providers will compute the Taxes based on such information and pay them to you from amounts collected from Buyers. You are responsible for the payment of the Taxes to the applicable government agencies. Any additional ancillary fees payable to third parties, including, but not limited to governmental entities, standard to your industry will be your sole responsibility, too. You will promptly reimburse Fotoee for any such amounts that Fotoee pays on your behalf. General Representations You represent and warrant to Fotoee that: (a) you have all the required rights and authority to enter into these Terms, perform the obligations and grant the rights, license and authorizations hereunder, including, but not limited to, the right to sell Items to Buyers; and (b) you and your subcontractors, agents and suppliers will comply with all applicable laws in the performance of your obligations and exercise of rights under these Terms. Content There’s a lot of great content that’s accessible through the Services. Any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services are collectively called “Content.” Content does not include physical Items. The Content that you provide through our Services to be posted in your Shop, including all information related to Items, is “Seller Content.” Content includes Seller Content where appropriate in these Terms. Content Ownership, Responsibility and Removal Some of the Content belongs to us – for example, if we create Content (or have Content created on our behalf) and make it available through the Services. On the other hand, you as a Seller will also provide Seller Content for inclusion in the Services - for example information and images of your Items. All of your Seller Content belongs to you and nothing in these Terms will take away any rights that you may have to use and exploit your Seller Content now and forever. We do however need to get some permissions (also called “rights”) from you to make Seller Content available via the Services. These permissions are described below. Please keep in mind that, subject to your ownership of your Seller Content, Fotoee and its licensors, exclusively own all right, title and interest in the Services and Content, including all associated intellectual property rights. You acknowledge that our Services and Content are protected by copyright, trademark, and other laws of the United States and other countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying our Services or Content. Rights in Seller Content Granted by You to Fotoee By making your Seller Content available on or through our Services, you grant to Fotoee a non-exclusive, transferable, sublicenseable, worldwide, royalty-free, perpetual, irrevocable license to use, copy, reformat, distribute copies of, publicly display, publicly perform and otherwise exploit your Seller Content in connection with operating and providing: (i) the Services to you, and (ii) the Services and Content to Buyers. You are solely responsible for all your Seller Content. You represent and warrant that you own all your Seller Content or you have all rights that are necessary to grant us the license rights in your Seller Content under these Terms. You also represent and warrant that neither your Seller Content, nor your use and provision of your Seller Content, nor any use of your Seller Content by Fotoee on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, including, but not limited to, patent, copyright, trademark rights, or rights of publicity or privacy or other intellectual property rights (whether registered or unregistered), or result in the violation of any applicable law or regulation. You also agree to keep your Seller Content accurate and up to date so that Buyers are able to place Orders for Items which are available. You can remove your Seller Content by specifically deleting it. We’re not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your Seller Content. Rights in Content Granted by Fotoee to You Subject to your compliance with these Terms, Fotoee grants you a limited, non-exclusive, non-transferable, non-sublicenseable license to access and view the Content solely in connection with your permitted use of the Services. Fotoee does not represent or warrant that any Content or information accessible via the Services is accurate, complete, reliable, current or error-free, and such Content and information are subject to change without notice. Rights and Terms for Apps Subject to your compliance with these Terms, Fotoee grants you a limited non-exclusive, non-transferable, non-sublicenseable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. Fotoee reserves all rights in and to the App not expressly granted to you under these Terms. Things you can buy and sell on Fotoee Fotoee was built to buy and sell all kinds of things, from that old laptop that you want to get rid of to that awesome The new iPad you always wanted. However, to keep Fotoee safe and trustworthy, we do NOT allow the following things to be posted: Weapons or explosive devices of any kind that can cause physical harm Sexual activity, obscene materials, child pornography or anything that may be harmful to minors Stolen goods - you can only post things that you own Chemicals that are poisonous or toxic, including illegal and legal drugs and prescribed medicine Materials that are infringing copyrights Alcohol and tobacco products If you are unsure whether what you are about to post is allowed on Fotoee, don't hesitate to drop us a line to clear up uncertainties. Copyright and IP Policy Fotoee respects all intellectual property law, including copyrights and trademarks and expects its users to do the same. It is Fotoee’s policy to terminate in appropriate circumstances Account holders or subscribers who repeatedly infringe the rights of copyright holders. In addition, Fotoee will take the action it deems appropriate in response to notices of trademark violations. Please see Fotoee’s Copyright and IP Policy for additional information. Links to Third Party Websites or Resources The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources. Disclaimers The Services and Content are provided ON AN “AS IS” AND “AS AVAILABLE” BASIS, without warranty of any kind. Without limiting the foregoing, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Fotoee MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR FREE BASIS. IN ADDITION, Fotoee WILL NOT BE LIABLE FOR ANY SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PAYMENT PROCESSING, ACCEPTANCE, COMPLETION, DELIVERY OR SETTLEMENT OF ANY TRANSACTIONS. TO THE EXTENT PERMITTED BY APPLICABLE LAWS AND REGULATION, YOU HEREBY AGREE TO WAIVE ANY AND ALL IMPLIED REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS THAT YOU MAY HAVE WHETHER UNDER STATUTE, LAW OR AS A CONSUMER OR OTHERWISE. Fotoee makes no warranty as to the IDENTITY, CHARACTER OR conduct of BUYERS OR users of the Services and assumes no resonsibility for a BUYER’S or A USER’s compliance with any applicable laws and regulations. You agree to take ALL reasonable precautions in all communications and interactions with BUYERS OR other users of the Services with whom YOU communicate or interact as a result of your use of the Services. Fotoee EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY BUYERS, USERS, OR OTHER THIRD PARTY. Indemnity You agree to indemnify, defend and hold harmless Fotoee and its officers, directors, employees, and agents, and any third party services provider (including but not limited to our payment processing services provider) from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses (in each case, direct or indirect), including, without limitation, reasonable legal and accounting fees (“Claim”), arising from or in any way connected with: (a) your breach of any obligations in these Terms, (b) your use of the Services, (c) your Items, including, but not limited to, issues of quality, safety, legality and issues arising in connection with your sale of any Items, including food and beverages, (including alcohol) and any actual or alleged infringement of any intellectual property rights by the Items, (d) any personal injury, death or property damage related to your use of the Services or relating to use of your Items, (e) the development, operation, maintenance of the Shop at your direction, (f) any Seller Content provided by you to be displayed on your Shop, or (g) any claims or legal issues that are related to your Taxes. Limitation of Liability YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES AND CONTENT, AND ANY CONTACT YOU HAVE WITH BUYERS OR OTHER USERS OF THE SERVICES, WHETHER IN PERSON OR ONLINE, REMAINS WITH YOU. NEITHER Fotoee NOR ANY OTHER party involved in creating, producing, or delivering the services or content will be liable TO YOU OR TO ANY THIRD PARTY for any incidental, special, PUNITIVE, exemplary or consequential damages, INCLUDING LOST PROFITS, LOSS OF USE, DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES, arising ouT of or in connection with thESE TERMS or from the use OF or inability to use the ServiceS or CONTENT, whether based on warranty, contract, tort (including negligence), PRODUCT LIABILITY or any other legal theory, and whether or not Fotoee has been informed of the possibility of such damages, EVEN IF A limited REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PUrPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS AND REGULATIONS, Fotoee’S TOTAL LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL NOT EXCEED THE GREATER OF (A) THE AMOUNT OF FEES RECEIVED BY Fotoee UNDER THESE TERMS RELATING TO THE ITEMS SOLD BY YOU IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, OR (B) THE PAYMENT COLLECTED OR RECEIVED BY OR FOR Fotoee FROM AN APPLICABLE BUYER RELATED TO THE SPECIFIC TRANSACTION GIVING RISE TO THE LIABILITY. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Fotoee AND YOU. NOTWITHSTANDING ANY OTHER PROVISIONS OF THESE TERMS, NOTHING IN THESE TERMS LIMITS OR EXCLUDES ANY OF (I) YOUR STATUTORY RIGHTS IN YOUR JURISDICTION (INCLUDING ANY RIGHTS UNDER APPLICABLE CONSUMER PROTECTION REGULATION), TO THE EXTENT THESE MAY NOT BE EXCLUDED OR WAIVED UNDER APPLICABLE LAWS AND REGULATIONS OR (II) LIABILITY FOR FRAUD ON THE PART OF Fotoee. Termination We may terminate your access to and use of the Services or deactivate or cancel your Seller Account on Fotoee, at our sole discretion and without liability to you. Upon any termination, discontinuation or cancellation of the Services or your Seller Account, the following provisions of these Terms will survive: relationship, cancellation, return, and refund, dispute with buyer, ownership provisions, tax, rights in Seller Content granted by you, warranty disclaimers, indemnity, limitation of liability, and dispute resolution provisions. Upon the termination of Services or your Account: (i) Fotoee will cease using Seller Content; (ii) you will fulfill all Orders placed prior to the termination, and (iii) you will be paid for all undisputed accrued and unpaid amounts due and owing to you for all fulfilled Orders that were placed prior to the termination but only for those Items ordered which are to be paid for using the Services. Insurance Please note that is it your responsibility to maintain at your expense any applicable insurance coverage. General Terms These Terms constitute the entire and exclusive understanding and agreement between Fotoee and you regarding the Services, Content, Orders and Items, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Fotoee and you regarding the Services, Content, Orders and Items. If for any reason a court of competent jurisdiction, or an arbitrator finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign, delegate or transfer these Terms or any rights or obligations under these Terms, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms, without our consent, will be null and of no effect. Fotoee may freely assign, delegate or transfer these Terms or any of our rights or obligations under these Terms, in whole or in part, without your prior consent or any restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns. Any notices or other communications provided by Fotoee under these Terms, including those regarding modifications to these Terms, will be given by Fotoee: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. The foregoing provision relating to the service of notices shall not apply in relation to the service of any claim form, notice, order, judgment or other document relating to or in connection with any proceedings, suit or action arising out of or in connection with these Terms. These Terms apply only to Fotoee and you. These Terms are not intended to, and shall not, create any third party beneficiary rights, except as expressly provided in these Terms. Fotoee’s failure or delay in enforcing any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Fotoee. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. Fotoee will not be responsible for any failure or delay in its performance under these Terms due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.