Terms of Service

Photography Release and License Agreement

This Photography Release and License Agreement (the “Agreement”) is entered into by and between Foto-Kem Industries, Inc. (“FotoKem”), and the person or entity submitting photographs through the FotoKem website (the “Website”) identified below (the “Customer”). By using the FotoKem Filmstrip service and uploading, editing, or submitting any photograph or image (the “Image” or collectively, “Images”) to FotoKem through the Website, Customer agrees to be bound by this Agreement.

1. The Filmstrip Service Offered

FotoKem offers a service under which customers may upload Images, crop and adjust the framing of those Images to align with a filmstrip format, and submit the edited Images for production. After submission and payment, FotoKem films Customer’s Images to 65mm negative film, prints the negative to 70mm film in either a three-frame or four-frame filmstrip configuration (each, a “Filmstrip”), and ships the finished Filmstrip to the address provided by Customer (collectively, the “Services”).

All physical Filmstrips are shipped FOB Shipping Point, meaning that legal title and risk of loss or damage for the physical product passes to the Customer upon FotoKem’s delivery of the package to the carrier (e.g., USPS, FedEx, UPS). FotoKem is not responsible for delivery delays, transit damage, or lost shipments caused by the carrier. In the event of a lost or damaged shipment, FotoKem will provide Customer with the necessary tracking and shipment details so that Customer may file a claim directly with the carrier. Customer desires to upload Images owned by Customer and utilize the Services.

2. License Grant

By entering into this Agreement, uploading and submitting any Image through the Website and otherwise using the Services, Customer hereby grants to FotoKem a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license to use, reproduce, copy, replicate, modify, edit, crop, reformat, create derivative works from, display, distribute, store, transmit and otherwise exploit the Images, in whole or in part (“Authorized Uses”), in connection with (a) the performance of the Services, including the filming, printing, and production of Filmstrips, and (b) FotoKem’s internal quality assurance, testing, and archival purposes. Customer acknowledges and agrees that FotoKem may retain copies of all Images submitted through the Website for reasonable periods of time as necessary for the purposes described in this Section.

3. Account Security

If Customer creates an account on the Website, Customer is solely responsible for maintaining the confidentiality of their account credentials, including any account username and password. Customer accepts full responsibility for all activities that occur under their account, including any Image uploads, Filmstrip orders, payment transactions and communications with FotoKem. Any Image submitted or order placed through Customer’s account shall be deemed authorized by Customer and subject to all representations and warranties, and indemnification obligations set forth in this Agreement. Customer agrees to notify FotoKem immediately upon becoming aware of any unauthorized use of their account or any other breach of security.

4. Representations and Warranties of the Customer

Customer represents and warrants to FotoKem as follows:

  • (a) Ownership of Rights: Customer is either (i) the sole and exclusive owner of all right, title, and interest in and to each Image submitted through the Website, including all copyright and intellectual property rights therein; or (ii) has obtained prior written permission, consent, or license from the copyright owner of each such Image, granting the Customer sufficient rights to upload, submit, modify, sublicense, use, reproduce, copy, replicate, modify, edit, crop, reformat, create derivative works from, display, distribute, store, transmit, and otherwise exploit the Image as contemplated by this Agreement.
  • (b) Consent of Depicted Individuals: To the extent any Image depicts any identifiable individual, Customer has obtained the proper written consent, model release, or other legally sufficient authorization from each such individual (or, in the case of a minor, from the minor’s parent or legal guardian) granting permission for the Image to be used, reproduced, modified, displayed, and distributed in connection with the Services and FotoKem’s rights under this Agreement.
  • (c) No Infringement: The Images, and Customer’s submission and licensing thereof, do not and will not infringe, misappropriate, or otherwise violate any copyright, trademark, right of publicity, right of privacy, moral right, or any other intellectual property or proprietary right of any third party.
  • (d) No Unlawful Content: The Images do not contain any content that is defamatory, obscene, pornographic, abusive, threatening, harassing, hateful, or otherwise unlawful, offensive, or objectionable, and the Images do not violate any applicable federal, state, or local law, statute, regulation, or ordinance.
  • (e) Authority: Customer has the full right, power, and authority to enter into this Agreement, to grant the licenses and rights set forth herein, and to perform all obligations under this Agreement, and the execution and performance of this Agreement does not conflict with any other agreement or obligation to which the Customer is a party or by which the Customer is bound.
  • (f) Accuracy of Information: All information provided by Customer in connection with the submission of Images and purchase of Services, including Customer’s name, contact information, shipping address, and payment information, is true, accurate, and complete.
  • (g) Age and Legal Capacity: Customer is at least 18 years of age (or the age of majority in their jurisdiction) and possesses the legal right, capacity, and authority to enter into this Agreement and fulfill all obligations herein.

5. Defense and Indemnification

  • (a) Indemnification Obligation: Customer shall indemnify, and hold harmless FotoKem, its parent companies, subsidiaries, affiliates, officers, directors, employees, agents, successors, and assigns (collectively, the “FotoKem Indemnified Parties”) from and against any and all claims, actions, suits, proceedings, demands, losses, damages, liabilities, judgments, settlements, penalties, fines, costs and expenses (including reasonable attorneys’ fees and court costs) (collectively, “Losses”) arising out of, relating to, or resulting from (i) Customer’s breach of any representation, warranty, or obligation in this Agreement, (ii) any claim that any Image submitted by Customer infringes, misappropriates, or otherwise violates the copyright, trademark, right of publicity, right of privacy, moral right, or any other intellectual property or proprietary right of any third party, (iii) Customer’s use of the Website or the Services in violation of applicable law, (iv) any claim by any individual depicted in any Image submitted by the Customer alleging a lack of consent or authorization, or (v) any negligent, reckless, or willful misconduct of Customer. In the event any claim, action, or proceeding is brought against a FotoKem Indemnified Party, FotoKem shall have the sole right to select legal counsel and control the defense, settlement, or compromise of such matter, and Customer shall remain fully responsible for reimbursing and indemnifying FotoKem, upon demand, for all reasonable attorneys’ fees, legal costs, and expenses incurred in connection therewith.
  • (b) Notice: FotoKem shall provide Customer with prompt written notice of any claim for which indemnification is sought, provided that the failure to provide such notice shall not relieve the Customer of any indemnification obligation except to the extent Customer is materially prejudiced by such failure.

6. Disclaimer of Warranties

While FotoKem utilizes industry-standard photochemical processing, Customer acknowledges that the process of translating digital images to physical film stock inherently involves differences in color, contrast, and other differences due to the distinct properties of digital displays and photochemical film media. As a result, variations between the original digital Image and the finished Filmstrip are expected and do not constitute a defect in the Services. Additionally, as a result of the unique sensitivity of the photochemical process and the subsequent physical handling of film stock, there may be scratches on the base layer of the filmstrip that are imperceptible in a normal projection or standard display environment, but possibly visible when held up directly to a light source and held at a particular angle. FotoKem does not warrant that physical prints will perfectly match digital screen displays.

THE SERVICES AND THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FOTOKEM DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. FOTOKEM DOES NOT WARRANT THAT THE WEBSITE WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. FOTOKEM MAKES NO WARRANTY REGARDING THE QUALITY, ACCURACY, OR RELIABILITY OF THE SERVICES, OR ANY FILMSTRIP PRODUCED, INCLUDING WITH RESPECT TO THE COLOR ACCURACY, RESOLUTION, OR FIDELITY OF THE IMAGES AS REPRODUCED ON FILM.

7. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FOTOKEM BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, DATA, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, OR THE IMAGES, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF FOTOKEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOTOKEM’S TOTAL AGGREGATE LIABILITY TO CUSTOMER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO FOTOKEM FOR THE SPECIFIC FILMSTRIP ORDER GIVING RISE TO THE CLAIM.

8. Content Removal and Refusal of Services

FotoKem reserves the right, in its sole and absolute discretion, to refuse to process, produce, or ship any Filmstrip, and to remove, reject, or delete any Image submitted through the Website, for any reason or no reason, including if FotoKem believes or suspects that an Image may infringe or violate the rights of any third party, contain unlawful or objectionable content, or otherwise violate the terms of this Agreement. In the event FotoKem exercises its rights under this Section after payment has been received, FotoKem’s sole obligation shall be to refund the purchase price paid by Customer for the affected Filmstrip order, less any costs already incurred by FotoKem in processing the order.

9. Governing Law and Dispute Resolution

This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles. Any dispute, claim, or controversy arising out of or relating to this Agreement shall be resolved through binding arbitration administered by the American Arbitration Association (“AAA”). The arbitration shall take place in Los Angeles County, California, and shall be conducted by a single arbitrator mutually selected by FotoKem and Customer. The arbitrator’s decision shall be final and binding. Each party shall bear its own costs and attorneys’ fees in connection with any arbitration except as otherwise required by applicable law.

10. Miscellaneous

  • (a) Entire Agreement: This Agreement constitutes the entire agreement between Customer and FotoKem with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, representations, and warranties, whether written or oral.
  • (b) Severability: If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect.
  • (c) Waiver: The failure of FotoKem to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
  • (d) Assignment: Customer may not assign or transfer this Agreement to any third party. FotoKem may freely assign this Agreement without restriction.
  • (e) Amendments: FotoKem reserves the right to modify or update the Services and terms and conditions for use of the Services via notice on the FotoKem website. Customer’s use of the Website or the Services following the posting of any changes constitutes Customer’s acceptance of such changes.
  • (f) Electronic Acceptance: Customer acknowledges and agrees that by selecting the checkbox labeled “I have read and agree to the Photography Release and License Agreement” on the Website, Customer is providing an electronic signature and consenting to be bound by the terms and conditions of this Agreement with the same force and effect as a handwritten signature. Customer may not upload or submit any Images or purchase any Services through the Website without first selecting the checkbox and affirmatively accepting this Agreement.
  • (g) Acceptance of Terms: By selecting the checkbox below, Customer acknowledges that the Customer has read, understood, and agrees to be bound by all of the terms and conditions of this Agreement, including the representations, warranties, license grant, indemnification obligations, limitation of liability, and disclaimer of warranties set forth herein.

Declaration of Acceptance: I have read and agree to the Photography Release and License Agreement. I represent and warrant that I am at least 18 years old, that I own all rights to the Images I am submitting, or that I have obtained written permission from the copyright owner, and that I have obtained consent from any individuals depicted in the Images. I understand that I am granting FotoKem a license to use, edit, replicate, and reproduce my Images as described in this Agreement, and that I agree to indemnify FotoKem against any claims arising from my submission of Images.

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