Terms and Conditions

Last updated: 4 December 2024

These are the general terms for Clients (the Terms) from GoPhoto LLC (GoPhoto).

These Terms are applicable to every agreement between the Client and GoPhoto (the Agreement). Capitalised terms in the Agreement have the same meaning in these Terms and vice versa.

1. Services
   1. The Services consist of the provision of Software, the necessary Hardware, and additional services, such as installing the system and training the Client’s team on how to operate the Hardware and Software. The full Services are further specified in the Agreement or the Project Template.
   2. Any services not expressly described as being included in the Services will be considered to be outside the scope of the Services and will be charged to the Client at a fee to be mutually agreed by the Parties.
2. Hardware
   1. GoPhoto shall set up the Hardware at the Location in consultation and with cooperation of the Client.
   2. GoPhoto shall provide the Client with a 24-month standard manufacturer’s warranty in respect of the Hardware.
   3. For the first year from installation, GoPhoto will replace defective hardware components on-site, covering both parts and labor if specialized knowledge is needed to replace the parts. In the second year, GoPhoto will supply replacement parts, while the Client is responsible for all labor and installation requirements.
   4. GoPhoto will not be responsible for any damage and/or loss as a result of downtime caused by malfunction and/or errors in the Hardware or the Hardware’s software (e.g., Bluetooth or the relevant Hardware’s operating system/firmware).
   5. GoPhoto is not responsible for damages caused by careless use of the Hardware.
   6. Upon delivery of the hardware, and should the Client choose to unpack the crates, the Client shall inspect the hardware and report any damages to GoPhoto within twenty-four (24) hours of receipt. Failure by the Client to notify GoPhoto of any damages within this period shall release GoPhoto from any responsibility to replace or repair the hardware.
3. Photo Products
   1. Upon delivery of the Photo Products, Client shall inspect and report any flaws to the Photo Products within twenty-four (24) hours of receipt. Failure by Client to report any flaws to GoPhoto within this timeframe shall release GoPhoto from any obligation to replace the Photo Products.
   2. The Client shall be obligated to purchase PhotoPasses exclusively from GoPhoto. The Client is prohibited from procuring the aforementioned Photo Products from any other third party.
4. Shipping
   1. GoPhoto shall provide an optional shipping service for hardware through an authorized shipping Client. If Client opts to use this service, GoPhoto assumes responsibility for the delivery of the hardware to Client’s designated location. Should Client elect not to use GoPhoto’s shipping service, GoPhoto disclaims all responsibility for the shipment once it departs the warehouse, and Client assumes all liability for transport, delivery, and related risks.
5. Timeline
   1. GoPhoto shall only provide certain Services after approval of the Client. If the Client receives a request for approval, the Client shall respond in writing within seven (7) business days of the request (the Response Time).
   2. The response shall indicate to GoPhoto whether the Client approves, rejects, or needs more time to consider the request.
   3. If the Client does not respond within the Response Time, the additional time (days) it takes for the Client to provide a response to GoPhoto will be added to the Timeline.
   4. The Client acknowledges that the ability of GoPhoto to comply with the Timeline is subject to the timely receipt of approvals and information from the Client, and the approvals of any third party.
6. Prices
   1. The Client shall pay GoPhoto the fees as described in the Agreement or Project Template and the Client shall reimburse GoPhoto for the expenses that comply with the rules in section 5.
   2. All prices mentioned by GoPhoto in the Agreement, Project Template, or otherwise do not include any applicable taxes and/or import duties; such taxes and/or duties shall be payable by the Client.
   3. GoPhoto shall be entitled to adjust the prices and rates set forth in this Agreement once per year, generally in the first quarter of the calendar year. All adjustments for inflation permitted under this Agreement shall be calculated utilizing the United States Bureau of Labor Statistics, Consumer Price Index for All Urban Consumers; U.S. City average (1982-84=100). If the United States Department of Labor should no longer compile and publish this index, the most similar index compiled and published by said Department or any other branch or department of the federal government shall be used for the purpose of computing the inflation adjustments provided for in this Lease. If no such index is compiled or published by any branch or department of the federal government, the statistics reflecting cost of living increases as compiled by any institution or organization or individual generally recognized as an authority by financial or insurance institutions shall be used as a basis for such adjustments.
7. Expense Policy
   

   Subject	Policy
   General	The policy provides guidelines and established procedures for GoPhoto’s installation team for the benefit of the Client. Standard installation team exists out of two (2) Travelers. Receipts must be submitted with Invoice(s) for all expense reimbursements.
   Flights	Flights are based on economy class. GoPhoto will select the most economically responsible airfare. GoPhoto may submit an itinerary that is of a greater cost, under the agreement that GoPhoto will pay the cost difference. If Traveler misses a flight, GoPhoto will be responsible for booking travel to the venue and adjusting housing at their own expense, and forfeits all payment corresponding to days of work missed. GoPhoto will be responsible for reimbursement to Client for 100% of the cost of any fees or penalties assessed for cancelling/adjusting flights and housing accommodations. Reimbursement is to be paid within thirty (30) business days.
   Accommodation	All hotel accommodation reservations will be booked by GoPhoto. GoPhoto will source a 3-4 star hotel with the most economically responsible rate. Each traveller will be provided a private room with a private bathroom.
   Ground transportation	Travellers may take ground transportation to the average travel norm of foreigners or visitors in the location. The cost of taxis to and from hotels, airports, and places of business may be submitted for reimbursement, when more economical means of transportation (i.e., hotel vans, shuttles, and rail) are not available or, due to business requirements, not appropriate to the travel schedule. Travellers will be reimbursed for the most economical options for Ride Share services, i.e., normal Uber, Lyft. If Traveler opts to use upgraded Ride Share services, the charges will be at Traveler’s cost, including but not limited to Uber Elite, Uber Black, Lyft Elite, etc. If it is more cost-effective for transport to and from the work site, a rental car may be obtained. This rental will be based on the most reasonable cost vehicle that can accommodate travel requirements (i.e., terrain and weather) and the number of people traveling together. Intermediate and standard size cars should meet most travelers’ needs. It is the responsibility of the driver to ensure adequate insurance coverage is provided.
   Additional travel Expenses	Other reimbursable items (when directly related to business travel): Laundry/dry-cleaning costs for business trips of fourteen (14) days or more, up to $100 per trip. Personal products deemed by Client, in writing, as locale-related healthcare necessities, up to $25.00 per person. Medical testing and/or vaccinations required or mandated by Client or Government/State regulations. Client does not reimburse illness-related expenses due to illness contracted, or suspected to be contracted, during travel or work. Equipment rentals (i.e., electrical tools, pallet truck, etc.) deemed necessary by Client in writing. Meals are not reimbursable and shall be paid by Traveler at his/her own expense.

8. Payment
   1. The fees will be paid within the term specified in the Agreement or Project Template.
   2. All invoices of GoPhoto have a payment term of 30 days, unless otherwise agreed.
   3. An invoice will be considered to have been received by the Client if e-mailed as a PDF attachment to the e-mail address(es) set out in the Agreement or Project Template.
   4. Any payment which is not made when due under this Agreement shall bear interest at the rate of the lesser of 10% per annum or the maximum rate of interest allowable if less than 10% per annum from the due date to the payment date.
   5. GoPhoto may set off any payment or other obligations towards the Client under the Agreement against claims that GoPhoto has against the Client under the Agreement, Project Template, or otherwise.
9. Locations
   1. GoPhoto shall provide the Services at certain locations of the Client, as agreed by the Parties (the Location).
10. Indemnification, Liability, and Insurance
    1. Each Party (First Party) shall indemnify, defend, and hold harmless the other Party (Second Party) and its respective representatives from and against any third-party claims, liabilities, and costs directly arising out of or in connection with any breach of any representations, warranties, or undertakings made by the First Party under the Agreement. If seeking to rely on the foregoing indemnity, the Second Party must promptly notify the First Party in writing of a claim or suit and provide reasonable cooperation (at First Party’s expense) to First Party.
    2. The liability of each Party directly arising out of or in connection with the Agreement will, in all circumstances, be limited to the lower of:
       1. The amount paid out under such Party’s professional liability insurance policy; or
       2. The Invoice value of 1 year with a maximum sum of EUR 100,000.00.
    3. Each Party is only liable for direct damages that are unequivocally caused by a shortcoming of that Party. Each Party will not be liable under any circumstances for consequential damages, indirect damages, loss of work, loss of profits, and/or business interruption.
    4. Neither Party is liable for any damages in case of Force majeure as specified in section 12.
    5. The right to claim damages shall in any event lapse twelve (12) months after the event from which the damage directly or indirectly results and for which a Party is liable.
    6. Nothing in the Agreement shall limit or exclude a Party’s liability to the extent it may not be excluded under any applicable laws, or it is the consequence of fraud, gross negligence, or wilful misconduct by a Party.
    7. GoPhoto shall not be held liable for any data-related breaches resulting from the actions, omissions, or operational errors of the Client.
11. Term and Termination
    1. The Parties may terminate the Agreement by giving a written or electronic notification (via e-mail) to the other Party, with a notice period of sixty (60) working days.
    2. Either Party may terminate the Agreement with immediate effect by written notice to the other Party if:
       1. the other Party is declared bankrupt or has been given a suspension of payment or application for such has been submitted to a court;
       2. the control over a Party or its business is directly or indirectly transferred to a third party;
       3. the business of a Party has been shut down or liquidated; or
       4. the other Party commits a material breach of the Agreement which breach (if capable of remedy) continues for thirty (30) days of receipt of written notice from the non-defaulting Party requiring the remedy of such breach. This breach must be material to such an extent that maintaining the Agreement cannot be deemed reasonable.
    3. The Parties may terminate the Agreement with immediate effect by mutual consent.
    4. In case of early termination in accordance with this section, the Client will pay GoPhoto on a pro-rata basis for the Services effectively rendered. All amounts which are paid in excess by the Client will be reimbursed by GoPhoto to the Client.
    5. Expiration or termination of the Agreement will not relieve a Party of any obligations accruing prior to the date of expiration or termination. The rights and obligations mentioned under section 10 (Indemnification, Liability and Insurance), 11 (Term and Termination), 13 (Confidentiality and non-disclosure), and 17 (Governing Law and Jurisdiction) will survive the expiration or termination of the Agreement as well as any other right or obligation which by its nature is intended to survive.
    6. Should the Client breach the requirements under the Agreement to make timely payments or provide required approvals or documentation to GoPhoto, GoPhoto may cease work until payment, approval, or documentation is received by GoPhoto. The Timeline shall be adjusted accordingly.
    7. Should a Project be cancelled, or the Project dates moved beyond GoPhoto’s availability, the Agreement will be considered terminated and the Client agrees to pay GoPhoto in full for the Services which the Client had already begun working on pursuant to the Timeline.
12. Force Majeure
    1. Force majeure means certain circumstances beyond a Party’s reasonable control which causes a delay in, or obstruct the fulfilment of (a part of) a Party’s obligations without its fault or negligence, such as:
       1. acts of God, flood, drought, earthquake or other natural disaster;
       2. epidemic or pandemic;
       3. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
       4. nuclear, chemical or biological contamination or sonic boom;
       5. any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary license or consent;
       6. collapse of buildings, fire, explosion or accident; and
       7. interruption or failure of utility service.
    2. If a Party cannot comply with its obligations because of Force Majeure it:
       1. may suspend its obligations for as long as the Force Majeure continues;
       2. will notify the other Party of the Force Majeure and the estimated delay.
    3. If the Force Majeure continues for more than two (2) interrupted months, either Party may terminate the Agreement in writing, without any liability to the other Party.
13. Confidentiality and Non-disclosure
    1. From time to time during the term of this Agreement, either Party (as the “Discloser“) may disclose or make available to the other Party (as the “Recipient“) information about its business affairs, products, services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information (collectively, “Confidential Information“).
    2. Confidential Information shall not include information that, at the time of disclosure:
       1. is or becomes generally available to the public other than as a result of any breach of this Section 13 by the Recipient or any of its Representatives;
       2. is obtained by the Recipient or its Representatives on a non-confidential basis from a third-party that, to the Recipient’s knowledge, was not legally or contractually restricted from disclosing such information;
       3. was in the Recipient’s or its Representatives’ possession prior to disclosure by the Discloser hereunder;
       4. was or is independently developed by the Recipient or its Representatives without using any of the Discloser’s Confidential Information; or
       5. is required to be disclosed under applicable federal, state, or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction.
    3. The Recipient shall:
       1. protect and safeguard the confidentiality of the Discloser’s Confidential Information with at least the same degree of care as the Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
       2. not use the Discloser’s Confidential Information, or permit it to be accessed or used, for any purpose other than to perform its obligations under this Agreement; and
       3. not disclose any such Confidential Information to any person or entity, except to the Recipient’s Representatives who need to know the Confidential Information to assist the Recipient, or act on its behalf, to exercise its rights or perform its obligations under the Agreement.
    4. The Recipient shall be responsible for any breach of this Section 13 caused by any of its Representatives. In addition to all other remedies available at law, the Discloser shall be entitled to specific performance and injunctive and other equitable relief as a remedy for any breach or threatened breach of this Section 13.
14. Notices, Communications
    1. Any notice or other communication required or permitted under the Agreement, shall be in English and:
       1. sufficiently given through email, on the email addresses specified in the Agreement or Project Template;
       2. in writing and personally delivered; or
       3. sent by registered mail or by courier to the addresses set out under the heading “PARTIES” of the Agreement.
    2. Each of the Parties is entitled to, during the term of the Agreement, notify the other Party of another (email) address to which any notice for the Purpose of the Agreement should be sent.
    3. The provisions of this section 14 will not apply in relation to the service of documents for the purpose of litigation.
    4. Any communications copied to the respective advisers of the Parties will be for information purposes only and will not constitute a valid notification under the Agreement.
15. Costs, Default
    1. The Parties must indemnify each other for all costs it has made in order to enforce the obligations resting on the other Party under the Agreement.
    2. If a certain obligation is not met or a term to meet an obligation is due by a Party, the non-defaulting Party will first send a notice of default. If the defaulting Party again fails to meet his obligation within 14 days, he will be in default.
16. Miscellaneous
    1. GoPhoto reserves the right to unilaterally amend or supplement these Terms. If the Client continues to use the services of GoPhoto after the effective date of the amended Terms, the Client will be deemed to have accepted the amended terms. GoPhoto will notify Client thirty (30) days before any change becomes effective. Client shall be entitled to terminate the Agreement in accordance with Section 11.1 if Client does not agree to the change.
    2. The Agreement may be amended only by the express written consent and signatures of both Parties.
    3. The Agreement including the Annexes and Project Templates constitutes the entire agreement between the Parties in relation to its subject matter and replaces all prior understanding (whether oral or written) regarding thereto.
    4. If any term of the Agreement or the Terms will not be legally valid or enforceable (in its entirety or in part), the Parties will in good faith seek to agree upon a solution that reflects the intended commercial objective of the invalid or unenforceable (part of the) term.
    5. No one other than a Party to the Agreement, their successors, and permitted assignees, will have any right to enforce any of its terms. A Party may not assign its rights and obligations under the Agreement or the Terms without the prior written consent of the other Party, except that the rights and obligations of a Party may be assigned to an affiliate on condition that the exercise of these rights and obligations will not constitute a violation of the applicable laws and regulations.
17. Governing Law and Dispute Resolution
    1. The Agreement is governed by and construed in accordance with the laws of Florida.
    2. In the event of a dispute arising between the Parties in connection with the (subject of) the Agreement or the Terms, the Parties shall adhere to the following procedure:
       1. the Party that states that there is a dispute must inform the other Party in writing. The date of this notification will be the starting date of the procedure;
       2. the representatives of both Parties will meet and discuss the dispute and will make all reasonable efforts to reach a solution;
       3. if there is no prospect of reaching an agreement within thirty (30) days, the Parties are obliged to refer the conflict to a suitably qualified and experienced mediator, to resolve the dispute as soon as it is reasonably possible to do so.
    3. In case of failure to reach an agreement related to the Agreement conflict, the disputes shall be settled through the courts of Country of Orange, State of Florida. In the first instance, the Court of Country of Orange, State of Florida, shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement, its subject matter, or formation and the negotiations.