THESE TERMS OF SERVICE CONSTITUTE A LEGALLY BINDING AGREEMENT (HEREINAFTER THE “AGREEMENT”) BETWEEN YOU AND ALMARAZ L & CO LTD, A NEVADA LIMITED LIABILITY COMPANY (HEREINAFTER “ALMARAZ”, “FAUTUS”, “WE,” “US” OR “OUR”) GOVERNING YOUR USE OF THE PATENT PENDING FAUTUS MOBILE APPLICATION, WEBSITE, AND TECHNOLOGY PLATFORM (COLLECTIVELY, “FAUTUS” OR “FAUTUS PLATFORM”).
A.1. ALMARAZ L & CO LTD is a limited liability company legally organized under the laws of the state of Nevada and is the owner of all rights, patent pending, and trademark marks and service marks used by Fautus mobile application, its website and technology platform. For convenience of reading and avoidance of unnecessary confusion, when referring to Almaraz or Fautus, we will use at all times Fautus whenever possible.
A.2. FAUTUS, is a patent pending technology platform owned by Almaraz L & Co LTD, a Nevada limited liability company and better described herein below in detail;
PLEASE BE ADVISED, THIS AGREEMENT CONTAINS PROVISIONS THAT, INTER ALIA, GOVERN THE FOLLOWING SENSITIVE TOPICS. YOU WILL FIND MORE DETAIL INFORMATION ON THE SECTION RESPECTIVE TO THE MATTER. HOWEVER, THE BELOW LIST IS PROVIDED IN GOOD FAITH ATTEMPT TO MAKE YOU READ AND UNDERSTAND THE CONTENT OF THIS AGREEMENT, FOR YOUR CONVENIENCE AND PROTECTION:
B.1 OWNERSHIP OF THE PHOTOS: All photos taken by a Photographer while providing Services or using directly or indirectly the Fautus Platform, shall always be exclusively owned, without exceptions, by, and only, the Fautus Consumer.
B.2. CLAIMS: Pursuant to Section 17 any claims you and Fautus have against each other can be brought, and, with limited exception, require you to submit claim to binding and final arbitration on an individual basis, not as a plaintiff or class member in any class, group or representative action or proceeding. AS A PHOTOGRAPHER OR CONSUMER, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN SECTION 17.
B.3. SECURITY: Pursuant to section 9 and 10, you should not take photos of any person under the age of 18 without adult supervision and clear consent; You should not take photos of any naked or uncovered private body part; You may have a Photographer’s account in the Fautus Platform if you disagree with any of the requirements indicated at Section 9 and 10.
The Fautus Platform provides a marketplace where individuals who seek a photoshoot at certain locations (“Consumer”) can be matched with nearby individuals in possession of an approved Digital Single Lens Reflect Cameras also known as DSLR (“Photographers”). Photographers and Consumers are collectively referred to herein as “Users”, and each User shall create a User account that enables access to the Fautus Platform. For purposes of this Agreement, the photography services provided by Photographers to Consumers that are matched through the Platform shall be referred to collectively as the “Services”. Any decision by a User to offer or accept Services is a decision made in such User’s sole discretion. Each photography Service provided by a Photographer to a Consumer shall constitute a separate agreement between such persons.
In the event Fautus modifies the terms and conditions of this Agreement, such modifications shall be binding on you only upon your acceptance of the modified Agreement. Fautus reserves the right to modify any information referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of the Fautus Platform or Services after any such changes shall constitute your consent to such changes. As a courtesy to You We will use reasonable efforts to properly inform you of any modifications. Please make sure your contact information is updated. Unless material changes are made to the arbitration provisions herein, you agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).
The Fautus Platform may only be used by individuals who can form legally binding contracts under applicable law. The Fautus Platform is not available to children (persons under the age of 18) or Users who have had their User account temporarily or permanently deactivated. By becoming a User, you represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account.
As a Consumer, you agree to pay the amounts charged for your use of the Fautus Platform and Services (“Charges”). Charges include photos, Moments and other applicable fees, plus any tips to the Photographer that you elect to pay. Fautus has the authority, and reserves the right, to determine and modify pricing by posting the applicable pricing terms. Pricing may vary based on the type of service you request (e.g., Avid, Skill or Pro) as described in the mobile application. You are responsible for reviewing the applicable selection of level of photographer and shall be responsible for all Charges incurred under your User account regardless of your awareness of such Charges or the amounts thereof.
Fees and Other Charges.
If you are a Photographer, you will receive payment for your provision of Services. All payments are subject to a Fautus Compensation Share, discussed below. You will also receive any tips provided by Consumers to You, and tips will not be subject to any Fautus Compensation Share. Fautus will process all payments due to You through its third party payments processor. You acknowledge and agree that such amounts shall not include any interest and will be net of any amounts that we are required to withhold by law.
By becoming a User, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Fautus, its affiliated companies and/or Photographers, may include but are not limited to: operational communications concerning your User account or use of the Fautus Platform or Services, updates concerning new and existing features on the Fautus Platform, communications concerning promotions run by us or our third- party partners, and news concerning Fautus and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.
If you wish to opt out of promotional emails, you can unsubscribe from our promotional email list by following the unsubscribe options in the promotional email itself. You acknowledge that by creating a user account with Fautus you consent to receive communications as a condition of using the Fautus Platform or the Services.
You may be able to create or log-in to your Fautus User account through online accounts you may have with third party social networking sites (each such account, an "SNS Account"). By connecting to Fautus through an SNS Account, you understand that Fautus may access, store, and make available any SNS Account content according to the permission settings of your SNS Account (e.g., friends, mutual friends, contacts or following/followed lists (the “SNS Content”)). You understand that SNS Content may be available on and through the Fautus Platform to other Users. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered to be your Information.
Fautus, at its sole discretion, may make available promotions with different features to any Users or prospective Users. These promotions, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with Fautus. Fautus reserves the right to withhold or deduct credits or benefits obtained through a promotion, the event that Fautus determines, or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement.
As part of your User account, Fautus may provide you with or allow you to create a “Fautus Code,” a unique alphanumeric code for you to distribute to friends, family and other persons (each a “Referred User”) to become new Fautus Consumers (“Referred Consumers”) or Photographers (“Referred Photographers”). Fautus Codes may only be distributed for promotional purposes and must be given away free of charge. You may not sell, trade, or barter your Fautus Code. You are prohibited from advertising Fautus Codes, including but not limited to: Google, Facebook, Twitter, Bing and Craigslist. Fautus reserves the right to deactivate or invalidate any Fautus Code at any time in Fautus’ discretion.
From time to time, Fautus may offer you with incentives to refer new Users to the Fautus community (the “Referral Program”). These incentives may come in the form of Fautus Credits, and Fautus may set or change the incentive types, amounts, terms, restrictions, and qualification requirements for any incentives in its sole discretion. Your distribution of Fautus Codes and participation in the Referral Program is subject to this Agreement and the additional Referral Program Rules, if any.
With respect to your use of the Fautus Platform and your participation in the Services, you agree that you will not:
10.Photographer Representations, Warranties and Agreements
By providing Services as a Photographer on the Fautus Platform, you represent, warrant, and agree that:
SHOULD YOU NOT AGREE IN ANY EXTENT TO ANY OF THE ITEMS HEREIN IMMEDIATELY ABOVE IN SECTION 9 AND 10 OR YOU MAY NOT BE ABOVE TO COMPLY DO TO PERSONAL CIRCUMSTANCES UNDER ANY OF THE REQUIREMENTS, THEN YOU ARE NOT AUTHORIZED TO PROVIDE YOUR SERVICES AS A PHOTOGRAPHER FOR THE FAUTUS PLATFORM. SHOULD YOU HAVE AN ACCOUNT YOU MUST LOGOUT OF THE PHOTOGRAPHER’S ACCOUNT AND IMMEDIATELY CEASE AND DESIST ANY PHOTOGRAPHY ACTIVITY.
All intellectual property rights in the Fautus Platform shall be owned by Fautus absolutely and in their entirety. These rights include and are not limited to database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, patents, whether pending or not, company or product names set forth in the Fautus Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by you to us are non-confidential and shall become the sole property of Fautus. Fautus shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
FAUTUS and other Fautus logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of Fautus in the United States and/or other countries (collectively, the “Fautus Marks”). If you provide Services as a Photographer, Fautus grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the Fautus Marks solely in connection with providing the Services through the Fautus Platform (“License”). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without Fautus prior written permission, which it may withhold in its sole discretion. The Fautus Marks may not be used in any manner that is likely to cause confusion.
You acknowledge that Fautus is the owner and licensor of the Fautus Marks, including all goodwill associated therewith, and that your use of the Fautus Marks will confer no additional interest in or ownership of the Fautus Marks in you but rather inures to the benefit of Fautus. You agree to use the Fautus Marks strictly in accordance with Fautus’ Trademark Usage Guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that Fautus determines to nonconforming or otherwise unacceptable.
You agree that you will not: (1) create any materials that incorporate the Fautus Marks or any derivatives of the Fautus Marks other than as expressly approved by Fautus in writing; (2) use the Fautus Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the Fautus Marks other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair Fautus’ rights as owner of the Fautus Marks or the legality and/or enforceability of the Fautus Marks, including, without limitation, challenging or opposing Fautus’ ownership in the Fautus Marks; (4) apply for trademark registration or renewal of trademark registration of any of the Fautus Marks, any derivative of the Fautus Marks, any combination of the Fautus Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the Fautus Marks; (5) use the Fautus Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
Violation of any provision of this License may result in immediate termination of the License, in Fautus’s sole discretion. If you create any materials bearing the Fautus Marks (in violation of this Agreement or otherwise), you agree that upon their creation Fautus exclusively owns all right, title and interest in and to such materials, including without limitation any modifications to the Fautus Marks or derivative works based on the Fautus Marks. You further agree to assign any interest or right you may have in such materials to Fautus, and to provide information and execute any documents as reasonably requested by Fautus to enable Fautus to formalize such assignment.
Fautus respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials on the Fautus Platform or Services infringe upon your copyrights, please visit Copyright Policy page for information on how to make a copyright complaint.
The following disclaimers are made on behalf of Fautus, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders.
Fautus does not provide professional photography services, and Fautus is not a photography business provider. It is up to the Photographer to decide whether or not to offer Services to a Consumer contacted through the Fautus Platform, and it is up to the Consumer to decide whether or not to accept Services from any Photographer contacted through the Fautus Platform. We cannot ensure that a Photographer or Consumer will complete an arranged Service. We have no control over the quality or safety of the Service that occurs as a result of the Services.
The Fautus Platform is provided on an “as is” basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of the Fautus Platform and/or the Services, including the ability to provide or receive Services at any given location or time. We specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
We do not warrant that your use of the Fautus Platform or Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error- free, or will meet your requirements, that any defects in the Fautus Platform will be corrected, or that the Fautus Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the Fautus Platform or Services.
We cannot guarantee that each Consumer is who he or she claims to be. Please use common sense when using the Fautus Platform and Services, including looking at the photos of the Photographer or Consumer you have matched with to make sure it is the same individual you see in person. Please note that there are also risks of dealing with underage persons or people acting under false pretense, and we do not accept responsibility or liability for any content, communication or other use or access of the Fautus Platform by persons under the age of 18 in violation of this Agreement. We encourage you to communicate directly with each potential Photographer or Consumer prior to engaging in an arranged Service.
Fautus is not responsible for the conduct, whether online or offline, of any User of the Fautus Platform or Services. You are solely responsible for your interactions with other Users. We do not procure insurance for, nor are we responsible for, personal belongings of Photographers or Consumers. By using the Fautus Platform and participating in the Services, you agree to accept such risks and agree that Fautus is not responsible for the acts or omissions of Users on the Fautus Platform or participating in the Services.
Fautus expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account or you suspect any other breach of security, you agree to notify us immediately.
It is possible for others to obtain information about you that you provide, publish or post to or through the Fautus Platform (including any profile information you provide), send to other Users, or share during the Services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users on the Fautus Platform or through the Services. Please carefully select the type of information that you post on the Fautus Platform or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or “hackers”).
Opinions, advice, statements, offers, or other information or content concerning Fautus or made available through the Fautus Platform, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on the Fautus Platform or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the Fautus Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
Location data provided by the Fautus Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Fautus, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data tracked or displayed by the Fautus Platform. Any of your Information, including geolocational data, you upload, provide, or post on the Fautus Platform may be accessible to Fautus and certain Users of the Fautus Platform.
Fautus advises you to use the Fautus Platform with a data plan with unlimited or very high data usage limits, and Fautus shall not be responsible or liable for any fees, costs, or overage charges associated with any data plan you use to access the Fautus Platform.
This paragraph applies to any version of the Fautus Platform that you acquire from the Apple App Store. This Agreement is entered into between you and Fautus. Apple, Inc. (“Apple”) is not a party to this Agreement and shall have no obligations with respect to the Fautus Platform. Fautus, not Apple, is solely responsible for the Fautus Platform and the content thereof as set forth hereunder. However, Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. This Agreement incorporates by reference Apple’s Licensed Application End User License Agreement, for purposes of which, you are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
Certain jurisdictions require additional disclosures to you. You can view any disclosures required by your local jurisdiction at www.Fautus.com/terms/disclosures. We will update the disclosures page as jurisdictions add, remove or amend these required disclosures, so please check in regularly for updates.
You will defend, indemnify, and hold Fautus including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of the Fautus Platform and participation in the Services, including: (1) your breach of this Agreement or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party, including, without limitation, Photographers, Consumers, other users, and pedestrians, as a result of your own interaction with such third party; (3) any allegation that any materials that you submit to us or transmit through the Fautus Platform or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (4) your ownership, use or operation of a DSLR camera, including your provision of Services as a Photographer; and/or (5) any other activities in connection with the Services. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
In no event will Fautus, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders (collectively “Fautus” for purposes of this section), be liable to you for any incidental, special, exemplary, punitive, consequential, or indirect damages (including, but not limited to, damages for deletion, corruption, loss of data, loss of programs, failure to store any information or other content maintained or transmitted by the Fautus Platform, service interruptions, or for the cost of procurement of substitute services) arising out of or in connection with the Fautus Platform, the Services, or this Agreement, however arising including negligence, even if we or our agents or representatives know or have been advised of the possibility of such damages. Certain jurisdictions may not allow the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have additional rights.
THIS AGREEMENT AND ANY OTHER TERMS OF SERVICE OF THIRD PARTY PROVIDER’S SUCH AS STRIPE, INC., IS EFFECTIVE UPON YOUR CREATION OF A USER ACCOUNT. This Agreement may be terminated: a) by User, without cause, upon seven (7) days’ prior written notice to Fautus; or b) by either Party immediately, without notice, upon the other Party’s material breach of this Agreement, including but not limited to any breach of Section 9 or breach of Section 10 of this Agreement. In addition, Fautus may terminate this Agreement or deactivate your User account immediately in the event: (1) you no longer qualify to provide Services; (2) you fall below Fautus’ star rating or cancellation threshold; (3) Fautus has the good faith belief that such action is necessary to protect the safety of the Fautus community or third parties, provided that in the event of a deactivation pursuant to (1)-(3) above, you will be given notice of the potential or actual deactivation and an opportunity to attempt to cure the issue to Fautus’ reasonable satisfaction prior to Fautus permanently terminating the Agreement. For all other breaches of this Agreement, you will be provided notice and an opportunity to cure the breach. If the breach is cured in a timely manner and to Fautus’ satisfaction, this Agreement will not be permanently terminated. Sections 11-12, 14-19, and 21 shall survive any termination or expiration of this Agreement.
(a) Agreement to Binding Arbitration Between You and Fautus.
You and Fautus mutually agree to waive our respective rights to resolution of disputes in a court of law by a judge or jury and agree to resolve any dispute by arbitration, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with Fautus ends. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and Fautus, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, members or shareholders.
Except as expressly provided below, all disputes and claims between us (each a “Claim” and collectively, “Claims”) shall be exclusively resolved by binding arbitration solely between you and Fautus. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Fautus Platform, the Services, any other goods or services made available through the Fautus Platform, your relationship with Fautus, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by Fautus, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Fautus and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND FAUTUS ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED, EXCEPT FOR THOSE CLAIMS AND DISPUTES WHICH BY THE TERMS OF THIS ARBITRATION AGREEMENT ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
(b) Prohibition of Class Actions and Non-Individualized Relief.
You understand and agree that you and Fautus may each bring Claims in arbitration against the other only in an individual capacity and not on a class, collective action, or representative basis (“Class Action Waiver”). You understand and agree that you and Fautus both are waiving the right to pursue or have a dispute resolved as a plaintiff or class member in any purported class, collective or representative proceeding. Notwithstanding the foregoing, this subsection (b) shall not apply to representative private attorneys general act claims brought against Fautus, which are addressed separately in Section 17(c).
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, the class, collective, and/or representative action on such Claims must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(c) Representative PAGA Waiver.
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent permitted by law: (1) you and Fautus agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and Fautus agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the Parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(d) Rules Governing the Arbitration.
Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA’s website (www.adr.org) (the “AAA Rules”) or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Fautus will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Consumers or Photographers, but is bound by rulings in prior arbitrations involving the same Consumer or Photographer to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
(e) Arbitration Fees and Awards.
The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
(f) Location and Manner of Arbitration.
Unless you and Fautus agree otherwise, any arbitration hearings between Fautus and a Consumer will take place in the county of your billing address, and any arbitration hearings between Fautus and a Photographer will take place in the county in which the Photographer provides Services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. If your Claim is for $10,000 or less, Fautus agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as determined by the AAA Rules. If your Claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
(g) Exceptions to Arbitration.
This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction; (2) a representative action brought on behalf of others under PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver in Section 17(c) of such action is deemed unenforceable by a court of competent jurisdiction; (3) claims for workers’ compensation, state disability insurance and unemployment insurance benefits; and (4) claims that may not be subject to arbitration as a matter of law.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration, however you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
In addition to the severability provisions in subsections (c) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(i) Photographer Claims in Pending Settlement.
If you are a member of a putative class in a lawsuit against Fautus involving Photographer Claims and a Motion for Preliminary Approval of a Settlement has been filed with the court in that lawsuit prior to this Agreement’s effective date (a “Pending Settlement Action”), then this Arbitration Agreement shall not apply to your Photographer Claims in that particular class action. Instead, your Photographer Claims in that Pending Settlement Action shall continue to be governed by the arbitration provisions contained in the applicable Agreement that you accepted prior to this Agreement’s effective date.
(j) Opting Out of Arbitration for Photographer Claims That Are Not In a Pending Settlement Action.
As a Photographer, you may opt out of the requirement to arbitrate Photographer Claims defined in Section 17(e)(3) (except as limited by Section 17(i) above) pursuant to the terms of this subsection. If you do not wish to be subject to this Arbitration Agreement with respect to Photographer Claims, you may opt out of arbitration with respect to such Photographer Claims, other than those in a Pending Settlement Action, by notifying Fautus in writing of your desire to opt out of arbitration for such Photographer Claims, which writing must be dated, signed and delivered by: (1) electronic mail to Claims@Fautus.com, or (2) by certified mail, postage prepaid and return receipt requested, or by any nationally recognized delivery service (e.g, UPS, Federal Express, etc.) that is addressed to:
ALMARAZ L & CO LTD.
20 N Wacker Dr., Suite 1200
Chicago, IL 60606
Cases have been filed against Fautus and may be filed in the future involving Photographer Claims. You should assume that there are now, and may be in the future, lawsuits against Fautus alleging class, collective, and/or representative Photographer Claims in which the plaintiffs seek to act on your behalf, and which, if successful, could result in some monetary recovery to you. But if you do agree to arbitration of Photographer Claims with Fautus under this Arbitration Agreement, you are agreeing in advance that you will bring all such claims, and seek all monetary and other relief, against Fautus in an individual arbitration provision, except for the Photographer Claims that are part of a Pending Settlement Action. You are also agreeing in advance that you will not participate in, or seek to recover monetary or other relief, for such claims in any court action or class, collective, and/or representative action. You have the right to consult with counsel of your choice concerning this Arbitration Agreement and you will not be subject to retaliation if you exercise your right to assert claims or opt- out of any Photographer Claims under this Arbitration Agreement.
(k) Optional Pre-Arbitration Negotiation Process.
Before initiating any arbitration or proceeding, you and Fautus may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and Fautus. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute (“Notice”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to Fautus’s business, operations and properties, including User information (“Confidential Information”) disclosed to you by Fautus for your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Fautus in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to Fautus with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by Fautus or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of Fautus; becomes known to you, without restriction, from a source other than Fautus without breach of this Agreement by you and otherwise not in violation of Fautus’ rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that You shall provide prompt notice of such court order or requirement to Fautus to enable Fautus to seek a protective order or otherwise prevent or restrict such disclosure.
As a Photographer on the Fautus Platform, you acknowledge and agree that you and Fautus are in a direct business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties. You and Fautus expressly agree expressly agree that (1) this is not an employment agreement and does not create an employment relationship between you and Fautus; and (2) no joint venture, franchisor-franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind Fautus, and you undertake not to hold yourself out as an employee, agent or authorized representative of Fautus.
Fautus does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Services, your acts or omissions, or your operation and maintenance of your equipment. You retain the sole right to determine when, where, and for how long you will utilize the Fautus Platform. You retain the option to accept or to decline or ignore a Consumer’s request for Services via the Fautus Platform, or to cancel an accepted request for Services via the Fautus Platform, subject to Fautus’ then-current cancellation policies. With the exception of any signage required for Consumers’ protection and identification purposes, Fautus shall have no right to require you to (b) wear a uniform or any other clothing displaying Fautus’ names, logos or colors. You acknowledge and agree that you have complete discretion to provide Services or otherwise engage in other business or employment activities.
In addition to connecting Consumers with Photographers, the Fautus Platform may enable Users to provide or receive goods or services from other third parties. For example, Users may be able to use the Fautus Platform to schedule a traditional photo-session for a wedding or run or birthday. The Fautus Platform is intended for short term on demand casual moments (collectively, the “Other Services”). You understand and that the Other Services are subject to the terms and pricing of the third-party provider. If you choose to purchase Other Services through the Fautus Platform, you authorize Fautus to charge your payment method on file according to the pricing terms. You agree that Fautus is not responsible and may not be held liable for the Other Services or the actions or omissions of the Consumers or other third- party provider you willingly choose to engage in business. Such Other Services may not be investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Other Services accessed through the Fautus Platform.
Except as provided in Section 17, this Agreement shall be governed by the laws of the State of Illinois without regard to choice of law principles. This choice of law provision is only intended to specify the use of Illinois law to interpret this Agreement and is not intended to create any other substantive right to non-Illinois’ to assert claims under Illinois law whether by statute, common law, or otherwise. If any provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace the invalid or non- binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement. You agree that this Agreement and all incorporated agreements may be automatically assigned by Fautus, in our sole discretion by providing notice to you. Except as explicitly stated otherwise, any notices to Fautus shall be given by certified mail, postage prepaid and return receipt requested to ALMARAZ L & CO LTD, 20 N Wacker Dr., Suite 1200, Chicago, IL 60606. Any notices to you shall be provided to you through the Fautus Platform or given to you via the email address or physical address you provide to Fautus during the registration process. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. A party’s failure to act with respect to a breach by the other party does not constitute a waiver of the party’s right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between you and Fautus with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.
If you have any questions regarding the Fautus Platform or Services, please contact our Customer Support Team through our Help Center.
Registration Information. When you sign up for a Fautus account, you give us your name, email address, and some times your phone number and a profile photo.
User Profile Information. When you join the Fautus community, you can create a Fautus Profile to share fun facts about yourself, and discover mutual friends and interests. Filling out a profile is optional, and you can share as little or as much as you want. Your name (and for Photographers, Profile photos) is always part of your Profile. Read more below about how you can control who sees your Profile.
Payment Method. When you add a credit card or payment method to your Fautus account, a third party that handles payments for us will receive your card information. To keep your financial data secure, we do not store full credit card information on our servers.
Communications. If you contact us directly, we may receive additional information about you. For example, when you contact our Customer Support Team, we will receive your name, email address, phone number, the contents of a message or attachments that you may send to us, and other information you choose to provide.
Photographer Application Information. If you decide to join our Fautus Photographer community, in addition to the basic registration information we ask you for your date of birth, physical address, mailing address, if different, Social Security number, a photo of a valid government issued ID and a selfie to match with your ID. We share this information with our partners who help us by running background checks on Photographers to help protect the Fautus community.
Payment Information. To make sure Photographers get paid, we partner with the best in the market, Stripe, Inc. Stripe, Inc., is a U.S. Technology company operating in about 25 different countries that allows both, private individuals and businesses to accept payment over the internet and in mobile applications. We do not keep information about Photographers’ bank routing numbers, tax information, social security numbers or any other payment information provided by Photographers. When you provide such sensitive information you are providing it directly to Stripe Inc. When you are creating a profile with Fautus you agree to Stripe, Inc’s own Terms of Service in addition to Fautus Terms of Service.
Location Information. Fautus is all about connecting Photographers and Consumers. To do this, we need to know where you are. When you open Fautus on your mobile device, we receive your location. We may also collect the precise location of your device when the app is running in the foreground or background. If you label certain locations, such as “home” and “work,” we receive that information, too.
Your location information is necessary for things like matching Consumers with nearby Photographers, determining Moment locations, and suggesting nearby photo opportunity locations. Also, if the need ever arises, we may use and share location information to help protect the safety of Fautus Users or a member of the public. If you give us permission through your device settings or Fautus app, we may collect your location while the app is off to identify promotions or service updates in your area.
Device Information. Fautus receives information from Users’ devices, including IP address, web browser type, mobile operating system version, phone carrier and manufacturer, application installations, device identifiers, mobile advertising identifiers, push notification tokens. We collect mobile sensor data from Photographers’ devices (such as camera band, number of photos) to improve location accuracy and quality of service.
Usage Information. To help us understand how you use the Fautus Platform and to help us improve it, we automatically receive information about your interactions with the Fautus Platform, like the pages or other content you view, your actions within the Fautus app, and the dates and times of your visits.
Call and Text Information. We work with a third party partner to facilitate phone calls and text messages between Consumers and Photographers who have been matched or have started or a Service. We receive information about these communications including the date and time of the call or SMS message, the parties’ phone numbers, and the content of any SMS messages. For security purposes, we may also monitor and/or record the contents of phone calls or text messages made on the Fautus Platform, such as those between Consumers and Photographers. You will be given notice that your call may be recorded, and by proceeding you agree to allow Fautus to monitor and/or record your call.
User Feedback. At Fautus, we want to make sure Users are always enjoying great experiences. Consumers and Photographers may rate and review each other at the end of every Moment. We receive information about ratings and reviews and, as we explain below, give Consumers information about Photographers’ ratings and reviews and vice versa.
Information from Cookies and Similar Technologies. We collect information through the use of “cookies”, tracking pixels, and similar technologies to understand how you navigate through the Fautus Platform and interact with Fautus advertisements, to learn what content is popular, and to save your preferences. Cookies are small text files that web servers place on your device; they are designed to store basic information and to help websites and apps recognize your browser. We may use both session cookies and persistent cookies. A session cookie disappears after you close your browser. A persistent cookie remains after you close your browser and may be accessed every time you use the Fautus Platform. You should consult your web browser(s) to modify your cookie settings. Please note that if you delete or choose not to accept cookies from us, you may be missing out on certain features of the Fautus Platform.
Third Party Partners. We may receive additional information about you, such as demographic data, payment information, or fraud detection information, from third party partners and combine it with other information that we have about you.
Background Information on Photographers. Fautus works with third party partners to perform criminal background checks on Photographers, and we receive information from them such as publicly available.
We use the information we collect from all Users to:
Connect Consumers with Photographers;
Provide, improve, expand, and promote the Fautus Platform;
Analyze how the Fautus community uses the Fautus Platform;
Communicate with you, either directly or through one of our partners, including for marketing and promotional purposes;
Personalize the Fautus experience for you and your friends and contacts;
Send you text messages and push notifications;
Facilitate transactions and payments;
Provide you with customer support;
Find and prevent fraud; and
Respond to trust and safety issues that may arise, including incidents, disputes between Consumers and Photographers, and requests from government authorities.
Additionally, we use the information we collect from Photographers for the following purposes related to providing Services on the Fautus Platform:
Sending emails and text messages to Photographers who have started the Photographer application process regarding the status of their application;
Determining a Photographer’s eligibility to provide Services for Fautus
Notifying Photographers about Moment request, pricing and service updates; and
Sharing between Consumers and Photographers. Consumers and Photographers that have been matched for a Moment or start a Snap Moment or related Services are able to see basic information about each other, such as names, photo, ratings, and any information they have added to their Profiles. Photographers see the location that the Consumer has provided. Consumers see a Photographer’s information and real-time location as the Photographer approaches the Consumers’ location. In some instances, Consumers’ ratings of Photographers are shared with Photographers on a weekly basis. We de-identify the ratings and feedback, but we can’t rule out that a Photographer may be able to identify the Consumer that provided the rating or feedback.
Although we help Consumers and Photographers communicate with one another to arrange a Service, we do not share your actual phone number or other contact information with other Users.
Sharing between Fautus Consumers. If you use Fautus Share feature, Consumers who have been matched with you will be able to see your name, photo and any information you have added to your Profile.
API and Integration Partners. If you connect to the Fautus Platform through an integration with a third party service, we may share information about your use of the Fautus Platform with that third party. We may share your information with our third party partners in order to receive additional information about you. We may also share your information with third party partners to create offers that may be of interest to you. Please note our payment and billing service; in app messaging service; customer service, location services and emailing services are all API and Integration Partners.
Third Party Services. The Fautus Platform may allow you to connect with other websites, products, or services that we don’t have control over. If you use these services, we will provide the third party with information about you to allow them to provide the service to you. We can’t speak to the privacy practices of these third parties, and we encourage you to read their privacy policies before deciding whether to use their services.
Service Providers. We work with third party service providers to perform services on our behalf, and we may share your information with such service providers to help us provide the Fautus Platform, including all of the things described in Section 3 above.
Other Sharing. We may share your information with third parties in the following cases:
While negotiating or in relation to a change of corporate control such as a restructuring, merger or sale of our assets;
If a government authority requests information and we think disclosure is required or appropriate in order to comply with laws, regulations, or a legal process;
With law enforcement officials, government authorities, or third parties if we think doing so is necessary to protect the rights, property, or safety of the Fautus community, Fautus, or the public;
To comply with a legal requirement or process, including but not limited to, civil and criminal subpoenas, court orders or other compulsory disclosures.
If you signed up for a promotion with another User’s referral or promotion code, with your referrer to let them know about your redemption of or qualification for the promotion;
With our insurance partners to help determine and provide relevant coverage in the event of an incident;
To provide information about the use of the Fautus Platform to potential business partners in aggregated or de-identified form that can’t reasonably be used to identify you; and
Whenever you consent to the sharing.
Email Subscriptions. You can always unsubscribe from our commercial or promotional emails but we will still send you transactional and relational emails about your account use of the Fautus Platform.
Push Notifications. You can opt out of receiving push notifications through your device settings. Please note that opting out of receiving push notifications may impact your use of the Fautus Platform (such as receiving a notification that your Photographer is nearby).
Profile Information. While your name will always be shared with Photographers and other Consumers you decide to share your moments or Services, you can delete any additional information that you added to your Profile at any time if you don’t want Photographers and Consumers to see it. Consumers will always be able to see Photographers’ names, rating, and profile photos.
Location Information. While you can prevent your device from sharing location information at any time through your Device’s operating system settings, Consumer and Photographer location is core to the Fautus Platform and without it we can’t provide our services to you.
Data Security. We are committed to protecting the data of the Fautus community. Even though we take reasonable precautions to protect your data, no security measures can be 100% secure, and we cannot guarantee the security of your data.
Children’s Privacy. Fautus is not directed to children, and we don’t knowingly collect personal information from children under 13. If we find out that a child under 13 has given us personal information, we will take steps to delete that information. If you believe that a child under the age of 13 has given us personal information, please contact us at our Help Center.