User Agreement
Welcome to Photo Anywhere!
This User Agreement describes the terms and conditions which you accept by using Photo Anywhere. These terms constitute an agreement between you and Photo Anywhere Pty Limited. When you create a Photo Anywhere account, you agree to these terms and conditions.
In this User Agreement:
"Photo
Anywhere", "we",
"our", "company" or "the
company" or "us" means Photo Anywhere Pty Limited (ACN 648 028 513).
"Account" means the account associated with your email address.
"Buyer" means a User that purchases Seller Services or items from Sellers or identifies as a Buyer through the App. A User may be both a Buyer and a Seller under this agreement.
“Seller” or “Photographer” means a User that offers and provides services or identifies as a Seller through the App. A User may be both a Buyer and a Seller under this agreement.
"Seller Services" or “Photographer Services” means all services provided by a Seller.
"Photo Anywhere Services" means all services provided by us to you.
“Application” or “App” means the Photo Anywhere application operated by Photo Anywhere Pty Limited, and any of its regional or other domains or properties, and any related Photo Anywhere service, tool or application, specifically including mobile web, any iOS App and any Android App.
“Payment” means a payment made by the Buyer for the provision of Seller Services under a User Contract and which will be released according to these terms and conditions.
"Project" or "Listing" means a job offered or awarded by a Buyer via the Application, which may include a Project listed by a Buyer, a Project awarded by a Buyer, and, a service bought by a Buyer from a Seller.
"User", "you" or "your" means an individual who visits or uses the Application.
"User Contract" means: (1) this User Agreement; (2) the Code of Conduct as amended from time to time; (3) any other contractual provisions accepted by both the Seller and Buyer, to the extent not inconsistent with the User Agreement and the Code of Conduct; (4) the Project terms as awarded and accepted on the Application, to the extent not inconsistent with the User Agreement and the Code of Conduct; and (5) any other material incorporated by reference from time to time.
"Inactive Account" means a User Account that has not been logged into for a 6 month period, or other period determined by us from time to time.
"Intellectual Property Rights" means any and all intellectual property rights, existing worldwide and the subject matter of such rights, including: (a) patents, copyright, rights in circuit layouts (or similar rights), registered designs, registered and unregistered trademarks, and any right to have confidential information kept confidential; and (b) any application or right to apply for registration of any of the rights referred to in paragraph (a), whether or not such rights are registered or capable of being registered and whether existing under any laws, at common law or in equity.
1. Overview
By accessing the Photo Anywhere Application, you agree to the following terms with Photo Anywhere:
2. Scope
Before using the Application, you must read the whole User Agreement, the Application policies and all linked information.
You must read and accept all of the terms in, and linked to, this User Agreement, the Code of Conduct, the Photo Anywhere Privacy Policy and all Application policies.
By accepting this User Agreement as you access our Application, you agree that this User Agreement will apply whenever you use the Application, or when you use the tools we make available to interact with the Application.
3. Eligibility
You will not use the Application if
you:
1. are not able to form legally binding contracts;
2. are under the age of 16;
3. are a person barred from receiving and rendering any aspect of our services under the laws of Australia or other applicable jurisdiction;
4. are suspended from using the Application;
5. are a convicted sex offender; or
6. do not hold a valid email address.
All free user accounts are associated with individuals. Login credentials should not be shared by users with others. The individual associated with the account will be held responsible for all actions taken by the account, without limitation.
Users may provide a business name or a company name, which is associated with the User's Account. Users acknowledge and agree that where a business name or company name is associated with their Account, this User Agreement is a contract with the User as an individual (not the business or company) and Users remain solely responsible for all activity undertaken in respect of their Account.
A company, corporation, trust, partnership or other non-individual corporate entity may be a User subject to an eligible corporate account which pays corporate subscriptions. We may, at our absolute discretion, refuse to register any person or entity as a User. You cannot transfer or assign any rights or obligations you have under this agreement without prior written consent.
4. Using Photo Anywhere
While using the Application, you will not attempt to or
otherwise do any of the following:
1. post content or items in inappropriate categories or areas on our Application and Photo Anywhere Services;
2. infringe any laws, third party rights or our policies, such as the Code of Conduct;
3. fail to deliver Seller Services purchased from you;
4. circumvent or manipulate our fee structure, the billing process, or fees owed to Photo Anywhere;
5. post false, inaccurate, misleading, deceptive, defamatory or offensive content (including personal information);
6. take any action that may undermine the feedback or reputation systems (such as displaying, importing or exporting feedback information or using it for purposes unrelated to the Application);
7. transfer your Photo Anywhere account (including feedback) and Username to another party without our consent;
8. distribute or post spam, unsolicited, or bulk electronic communications, chain letters, or pyramid schemes;
9. distribute viruses or any other technologies that may harm Photo Anywhere, the Application, or the interests or property of Photo Anywhere users (including their Intellectual Property Rights, privacy and publicity rights) or is unlawful, threatening, abusive, defamatory, invasive of privacy, vulgar, obscene, profane or which may harass or cause distress or inconvenience to, or incite hatred of, any person;
10. download and aggregate listings from our Application for display with listings from other applications or websites without our express written permission, "frame", "mirror" or otherwise incorporate any part of the Application into any other application or website without our prior written authorisation;
11. attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs used by us in connection with the Application;
12. copy, modify or distribute rights or content from the Application or Photo Anywhere’s copyrights and trademarks; or
13. harvest or otherwise collect information about Users, including email addresses, without their consent.
14. use Photo Anywhere to facilitate money exchange including, but not limited to, cryptocurrency (e.g. bitcoin, ethereum, etc).
5. Intellectual Property Rights Infringement
It is our policy to respond to clear notices of
alleged intellectual property rights infringement. Our Copyright Infringement Process is designed to make
submitting notices of alleged infringement to us as straightforward as possible while reducing the number of
notices that we receive that are fraudulent or difficult to understand or verify. If you believe that your
Intellectual Property Rights have been violated, please notify us via support@photoanywhere.com aon our Website and we will investigate.
6. Fees and Services
We charge fees for certain services, such as introduction fees for Projects, listing upgrades and memberships. When you use a service that has a fee, you have an opportunity to review and accept the fees that you will be charged based on our schedule of fees and charges, which we may change from time to time and will update by placing on our Application.
We may choose to temporarily change the fees for our services for promotional events (for example, discounts on memberships) or new services, and such changes are effective when we post a temporary promotional event or new service on the Application, or as notified through promotional correspondence.
Unless otherwise stated, all fees are quoted in United States Dollars.
7. Taxes
You are responsible for paying any taxes, including any goods and services or value added taxes, which may be applicable depending on the jurisdiction of the services provided.
Depending on your residency or location, you may be subject to certain ad valorem or other taxes (for example, GST in Australia), on certain fees that we charge. These taxes will be added to fees billed to you, if applicable. You acknowledge that you must comply with your obligations under income tax provisions in your jurisdiction. Certain Sellers who are either registered or required to be registered for GST may be required to charge GST to Australian Consumers on certain projects. You will be notified and asked to confirm on award/accept of such projects the appropriate GST treatment.
For Indian Sellers only: As of 1st of October 2018, Indian GST laws mandate a collection of 1% GST by Photo Anywhere as tax on the net value of taxable supplies made by the Seller through the Photo Anywhere Application. Accordingly, Photo Anywhere shall collect a 1% tax from the net value of the taxable projects or listings made by the Buyer and will deposit the same to the Indian government exchequer in accordance with applicable GST laws. In cases where (i) the Seller is outside India and (ii) GST is payable by the Buyer under reverse charge basis, Photo Anywhere is not required to collect this tax.
8. Payment Administration Agent
You acknowledge and agree that we may in our sole discretion, from time to time, appoint our related bodies corporate, affiliates, or any other third party to act as our agent to accept or make payments (including merchant facilities) from or to Users on our behalf.
Such affiliates may include, without limitation, Freelancer Technology Pty Ltd, Freelancer India Pty Ltd Australia, Warrior Forum Pty Ltd, Warrior Technology Pty Ltd, Payments Pty Ltd, Payments International Pty Ltd, Payments Australia Pty Ltd, Payments IP Pty Ltd, Freelancer Networks (Canada) Inc., Freelancer Outsourcing Inc, Freelancer.com Pte Limited, Freelancer International GmbH, Freemarket (Switzerland) GmbH, Freelancer Online India Private Limited, Freelancer.com Philippines, Inc., Freelancer Outsourcing UK Limited and Freelancer (Shanghai) Information Technology Co., Ltd.
If your payment is made through an Ingenico Group (Global Collect) gateway in GBP, your acquiring bank will be Allied Irish Banks p.l.c. and merchant of record will be Freelancer Outsourcing UK Limited as Payment Administration Agent under this agreement.
Such a third party will have the same rights, powers and privileges that we have under this User Agreement and will be entitled to exercise or enforce their rights, powers and privileges as our agent or in their own name. In no event shall we be liable to any User for any loss, damage or liability resulting from the Payment Administration Agent's negligence and/or acts beyond the authority given by Photo Anywhere.
We may display your company or business name, logo, images or other media as part of the Photo Anywhere Services and/or other marketing materials relating to the Application, except where you have explicitly requested that we do not do this and we have agreed to such a request in writing.
You acknowledge that we may use the public description of your Projects and the content of your profile information on the Application and elsewhere, for marketing and other related purposes.
10. Content
When you access content through the Application, you grant us a worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, trademark, publicity, and database rights (but no other rights) you have in the content, in any media known now or in the future.
You acknowledge and agree that: (1) we act only as a forum for the online distribution and publication of User content. We make no warranty that User content is made available on the Application. We have the right (but not the obligation) to take any action deemed appropriate by us with respect to your User content; (2) we have no responsibility or liability for the deletion or failure to store any content, whether or not the content was actually made available on the Application; and (3) any and all content submitted to the Application is subject to our approval. We may reject, approve or modify your User content at our sole discretion.
You represent and warrant that your content:
1. will not infringe upon or misappropriate any copyright, patent, trademark, trade secret, or other intellectual property right or proprietary right or right of publicity or privacy of any person;
2. will not violate any law or regulation;
3. will not be defamatory or trade libellous;
4. will not be obscene or contain nudity, partial nudity, sexually suggestive photos, or child pornography;
5. will not contain the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons
6. will not contain material linked to terrorist activities
7. will not include incomplete, false or inaccurate information about any User or any other individual; and
8. will not contain any viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
You acknowledge and agree that we may transfer your personal information to a related body corporate and your information may be transferred outside of Australia or the EEC-area. If you wish to withdraw your consent, you acknowledge and agree that we may be unable to provide you with access to the Application and Photo Anywhere Services and may close your Account.
Information available through the Application may contain general information about legal, financial, health and other matters. The information is not advice, and should not be treated as such. You must not rely on the information available through the Application as an alternative to professional advice. If you have specific questions about any matter you should consult your professional adviser.
We may provide unmonitored access to third party content, including User feedback and articles with original content and opinions (or links to such third party content). We only act as a portal and have no liability based on, or related to, third party content available through the Application, whether arising under the laws of copyright or other intellectual property, defamation, libel, privacy, obscenity, or any other legal discipline.
The Application may contain links to other third party application and websites. We do not control the applications and websites to which we link from the Application. We do not endorse the content, products, services, practices, policies or performance of the websites we link to from the Application. Use of third party content, links to third party content and/or websites is at your risk.
In relation to deletion or hiding of any information or content, using the Application to delete, hide or otherwise dispose of information does not imply permanent deletion of content or information. Information may be retained for a period of time to fulfil record keeping, regulatory, compliance, statistical, law enforcement and other obligations.
11. Feedback, Reputation and Reviews
You acknowledge that you transfer copyright of any feedback, reputation or reviews you leave consisting of comments and any rating(s) (e.g. quality, communication etc.) together with any composite rating by us. You acknowledge that such feedback, reputation and reviews belong solely to us, notwithstanding that we permit you to use it on our Application while you remain a User. You must not use, or deal with, such feedback, reputation and reviews in any way inconsistent with our policies as posted on the Application from time to time without our prior written permission.
You may not do (or omit to do) anything that may undermine the integrity of the Photo Anywhere feedback system. We are entitled to suspend or terminate your Account at any time if we, in our sole and absolute discretion, are concerned by any feedback about you, or your feedback rating, where we believe our feedback system may be subverted.
Our feedback ratings belong to us and may not be used for any purpose other than facilitating the provision of Seller Services via the Application. You may not use your Seller or Buyer feedback (including, but not limited to, marketing or exporting any or all of your composite rating(s) or feedback comments) in any real or virtual venue other than an application or website operated by Photo Anywhere or its related entities, without our written permission.
Unless otherwise agreed with us, you must not advertise an external website, application, product or service on the Application. Any website address posted on the Application, including in a listing, bid, listing description, clarification board or the message board, must relate to a Project, item listed, user or service being performed on the Application.
We may display advertisements or promotions on the Application. You acknowledge and agree that we shall not be responsible for any loss or damage of any kind incurred by you as a result of the presence of such advertisements or promotions or any subsequent dealings with third parties. Furthermore, you acknowledge and agree that content of any advertisements or promotions may be protected by copyrights, trademarks, service marks, patents or other intellectual property or proprietary rights and laws. Unless expressly authorised by Photo Anywhere or third party right holders, you agree not to modify, sell, distribute, appropriate or create derivative works based on such advertisement/promotions.
Communication with other users through the Application must be conducted through the text, audio and or video chat functionality, along with message boards, public clarification boards, Project message board, direct message sending and other communication channels provided on the Application.
You must not post your email address or any other contact information (including but not limited to Skype ID or other identifying strings on other platforms) on the Application, except in the "email" field of the signup form, at our request or as otherwise permitted by us on the Application.
Unless you have a prior relationship with a User, you must only communicate with Users via the Application. You must not, and must not attempt to, communicate with other Users through any other means including but not limited to email, telephone, Skype, ICQ, AIM, MSN Messenger, Facebook Messenger, WhatsApp, Google Hangouts, WeChat, SnapChat, GTalk, GChat or Yahoo.
In relation to video chat and audio chat, any terms agreed to between any Users must be confirmed in writing using the chat or direct message function.
Photo Anywhere may use information such as your name, location, display or username, and or your image, in relation to the provision messaging services on the Application.
We may read all correspondence posted to the Application and download or access, and test (if necessary), all uploaded files, programs and websites related to your use of the Application for the purpose of investigating fraud, regulatory compliance, risk management and other related purposes.
You authorise us, directly or through third parties, to make any inquiries we consider necessary to validate your identity. You must, at our request: (1) provide further information to us, which may include your date of birth and or other information that will allow us to reasonably identify you; (2) take steps to confirm ownership of your email address or financial instruments; or (3) verify your information against third party databases or through other sources.
You must also, at our request, provide copies of identification documents (such as your passport or driver's licence). We may also ask you to provide photographic identification holding your identification together with a sign with a code that we provide as an additional identity verification step. We also reserve the right to request a video interview with you to validate this information, your identity, your background and your skills.
We reserve the right to close, suspend, or limit access to your Account, the Application and/or Photo Anywhere Services in the event we are unable to obtain or verify to our satisfaction the information which we request under this section.
We reserve the right to update your particulars on the Application in order to match any identity documentation that has been provided. Disbursements such as wire transfers from the website may only be made to the beneficiary matching your provided identity documents and account information.
If you are not verified with Photo Anywhere you may not be able to withdraw funds from your Photo Anywhere Account, and other restrictions may apply. Further details are included in our Know Your Customer and Identity Verification Policy.
Upon the Seller accepting a Project posted by a Buyer, or the purchase of an item by a Buyer from the Seller, the Buyer and Seller will be deemed to have entered into a User Contract under which the Buyer agrees to purchase, and the Seller agrees to deliver the Seller Services. You agree that Photo Anywhere is not a party to such a User Contract. You agree not to enter into any contractual provisions in conflict with this Photo Anywhere User Agreement.
You are solely responsible for ensuring that you comply with your obligations to other Users. If you do not, you may become liable to that User. You must ensure that you are aware of any domestic laws (including common law), international laws, statutes, ordinances and regulations relevant to you as a Buyer or Seller, or in any other uses you make of the Application.
If another User breaches any obligation to you, you are solely responsible for enforcing any rights that you may have. For the avoidance of doubt, we have no responsibility for enforcing any rights under a User Contract.
Depending on their jurisdiction, Sellers and Buyers may have rights under statutory warranties that cannot lawfully be excluded. Nothing in this Photo Anywhere User Agreement is intended to override a right that by applicable law may not be excluded. Nothing in this Photo Anywhere User Agreement is intended to violate any laws relating to unfair contracts, and this agreement has been specifically redrafted to ensure compliance with unfair contracts legislation. To the extent that any component of this Photo Anywhere User Agreement is in conflict with inalienable rights under local laws, all parties intend for this agreement to be read down only insofar as to be in compliance with such local laws and no further.
Each User acknowledges and agrees that the relationship between Buyers and
Sellers is that of an independent contractor. Nothing in this Photo Anywhere User Agreement creates a
partnership, joint venture, agency or employment relationship between Users. Nothing in this Photo Anywhere
User Agreement shall in any way be construed as forming a joint venture, partnership or an employer-employee
relationship between Photo Anywhere and any User.
16. Funds
You are not entitled to any interest, or other earnings for funds that you pay for Seller Services.
We may receive interest on funds held by us in our operating accounts from financial institutions with whom we hold our operating accounts. Any such interest earned belongs to us and we will not be liable to any User for any imputed interest on such funds.
We reserve the right to collect any funds owed to us by any other legal means.
You acknowledge and agree that:
1. we are not a bank or other licensed financial institution and do not provide banking services or any financial services to you;
2. When you pay for Seller Services through the Application, this represents our unsecured obligations to you with respect to your rights to direct us to make payment in relation to the purchase and sale of Seller Services through the Application and provision of the Photo Anywhere Services;
3. to the extent that we are required to release funds to you, you will become our unsecured creditor until such funds are paid to you;
4. we are not acting as a trustee or fiduciary with respect to such funds or payments;
5. you must only use the mechanisms available on the Website to pay for, or receive funds in respect of Seller Services;
6. any refunds required to be processed in your favour will be returned only to the source of the original deposit, and cannot be redirected to any other payment source;
7. we may hold funds in respect of your payment in an account held by us with a financial institution (or in any manner that we decide in our sole discretion from time to time) and such funds are not segregated into a separate account; and
8. we may commingle your funds with funds of other Users and our own funds and such commingled funds could be used to pay other Users or for our general corporate purposes or otherwise, however, we will remain obliged to release or refund funds at your direction in accordance with this Photo Anywhere User Agreement.
We reserve the right to cancel or suspend a payment if the source of the funds is suspected to be fraudulent.
If we become aware that any funds are received as a result of a fraudulent transaction, this will be reversed immediately. If those funds have already been released to you, you must pay return the funds. If you do not do so, we may suspend, limit or cancel your account, or take action against you to recover those funds.
We may, in our sole discretion, place a limit on any or all of the funds you pay (thereby preventing any use of the funds) if:
1. we believe there may be an unacceptable level of risk associated with you, your Account, or any or all of your transactions, including if we believe that there is a risk that such funds will be subject to reversal or chargeback;
2. we believe that the beneficiary of the payment is someone other than you;
3. we believe that the payment is being made to a country where we do not offer Photo Anywhere Services; or
4. we are required to do so by law or applicable law enforcement agencies.
If you are involved in a dispute, we may (in certain circumstances) place a temporary hold on the funds you have paid, to cover the amount of any potential liability. If the dispute is resolved in your favour, we will lift the limit on your funds and those funds may be released to you. If the dispute is not resolved in your favour, we may pay the funds to another User, or retain the funds. We may also place a limit on your account in circumstances where we suspect you of fraudulent or other unacceptable behaviour, while we investigate any such matter.
You may ask for a refund at any time for any funds that you have paid to a Seller, except if the amount to refund relates to fees or charges payable to us.
If the amount the User has asked to refund relates to our fees and charges, the process set out in the Clause "Disputes with Us" must be followed.
If we agree to the refund, the funds will be received by the User via the same payment method(s) that the User used to make the original payment to us.
We may refund funds to Users irrespective of whether a User has requested funds be refunded if: (1) we are required by law or consider that we are required by law to do so; (2) we determine that refunding funds to the User will avoid any dispute or an increase in our costs; (3) we refund funds to the User in accordance with any refund policy specified by us from time to time; (4) we find out that the original payment made by the User is fraudulent; (5) the User made a duplicate payment in error; or (6) we consider, in our sole opinion, that it is likely that the refund of funds is necessary to avoid a credit card chargeback.
You can request a refund by using our customer support function or emailing us at support@photoanywhere.com
If you initiate any chargeback request or other "Request for Information" or similar process, you expressly agree and consent to us to share any and all information in relation to your agreement of these terms and conditions, in order to defeat any such chargeback request.
If you have already initiated a chargeback request with your credit card issuer, you must not request a refund of funds by contacting us and must not seek double recovery.
If we reasonably determine, having considered all the relevant circumstances, that you have made an excessive or unreasonable number of requests to refund funds back to you or chargebacks, we may suspend, limit or close your Account.
A chargeback (being a challenge to a payment that a User files with their card issuer or financial institution), and any subsequent reversal instruction, is made by the payment product issuer or third parties (such as payment processors) and not by us. We are bound to follow such instructions.
You acknowledge and agree that we will be entitled to recover any chargebacks and reversals that may be imposed on us by a payment product issuer or third parties (such as payment processors) on funds paid by you through the Application, as well as any processing or any other fees whatsoever incurred by us on those chargebacks and reversals.
You agree that we may reverse any such payments made to you, which are subject to chargeback or reversal instruction via your payment product issuer or third parties (such as payment processors). If you initiate any chargeback request or other "Request for Information" or similar process, you expressly agree and consent to us to share any and all information in relation to your agreement of these terms and conditions, in order to defeat any such chargeback request.
We reserve the right to close an Inactive Account.
We reserve the right to close an account with nil or negative funds.
21. Right to Refuse Service
We may close, suspend or limit your access to your Account without reason. Without limiting the foregoing, we may close, suspend or limit your access to your Account:
1. if we determine that you have breached, or are acting in breach of this User Agreement;
2. if you attempt to renegotiate the actual price privately, to attempt to avoid fees;
3. if we determine that you have infringed legal rights (resulting in actual or potential claims), including infringing Intellectual Property Rights;
4. if we determine that you have engaged, or are engaging, in fraudulent, or illegal activities;
5. you do not respond to account verification requests;
6. you do not complete account verification when requested within 3 months of the date of request;
7. you are the subject of a United Nations, Australian, EU, USA or other applicable sanctions regime, or our banking and payment relationships otherwise preclude us from conducting business with you;
8. to manage any risk of loss to us, a User, or any other person; or
9. for other reasons.
If we close your Account due to your breach of this User Agreement, you may also become liable for certain fees as described in this User Agreement.
Without limiting our other remedies, to the extent you have breached this User Agreement, you must pay us all fees owed to us and reimburse us for all losses and costs (including any and all of our employee time) and reasonable expenses (including legal fees) related to investigating such breach and collecting such fees.
You acknowledge and agree that: (1) the damages that we will sustain as a result of your breach of this User Agreement will be substantial and will potentially include (without limitation) fines and other related expenses imposed on us by our payment processors and Users and that those damages may be extremely difficult and impracticable to ascertain; (2) if you breach this User Agreement, we may fine you up to US$3,000 for each breach and/or we may take legal action against you to recover losses that are in excess of the fine amount; (3) a fine of up to US$3,000 is a presently reasonable pre-estimate or minimum estimate of our damages, considering all currently existing circumstances, including (without limitation) the relationship of the sum to the range of harm to us that reasonably could be anticipated and the anticipation that proof of actual damages may be impractical or extremely difficult; and (4) we may release the entire (or part of the) amount of the fine from your Account to us.
If we close your Account for a reason other than as a result of your breach of this User Agreement, unless as otherwise specified in this User Agreement, you will be entitled to receive any payment due from us to you.
In the event that we close your Account, you will have no claim whatsoever against us in respect of any such suspension or termination of your Account.
You acknowledge and agree that in the event that a dispute arises between you and another User in relation to any Project that you will first attempt to resolve any differences that you have in relation to such Project, including in relation to the quality of the services provided.
If you continue to have any difficulties or problems in relation to a dispute with another User in relation to a Project we encourage you to contact us as set out in the Clause entitled "Contacting us".
Photo Anywhere will have full rights and powers to make a determination for all disputes. Upon receipt of a dispute, Photo Anywhere shall have the right to request the Seller and the Buyer to provide documentation in support of their claim or position in relation to the dispute. You agree that Photo Anywhere has absolute discretion to accept or reject any document provided. You also acknowledge that Photo Anywhere is not a judicial or alternative dispute resolution institution and that we will make the determinations only as an ordinary reasonable person. In addition, we do not warrant that the documents provided by the parties to the dispute will be true, complete or correct and you agree to indemnify and (to the maximum extent permitted by law) hold Photo Anywhere and any of our affiliates harmless against any damages or liability you may suffer as a result of any documentation or material subsequently being found to be false or misleading.
In relation to disputes with any other users of the Application, you hereby agree to indemnify Photo Anywhere from any and all claims, demands, and damages, actual and consequential, of every kind and nature, known and unknown, that is related to such a dispute, our determinations or the use of the Dispute Resolution Services.
The Photo Anywhere Code of Conduct applies to all Photo Anywhere Services. It is agreed by you that you will make every endeavour at fair play and post reasonable and fair demands/offers on your dispute. No conduct relating to threats, blackmail, intimidation or inducement of users to leave positive feedback will be tolerated, in particular any refusal to provide either deliverables or payment in relation to the provision of feedback.
A User found to be in breach of the Code of Conduct during the Dispute Resolution Service process may automatically lose the dispute in favour of the other party involved, regardless of the origin of the dispute. The User who breached the Code of Conduct may also incur further disciplinary action. For more information, read the Code of Conduct.
If a dispute arises between you and Photo Anywhere, our goal is to address your
concerns immediately and, if we are unable to do so to your satisfaction, to provide you with a means of
resolving the dispute quickly. We strongly encourage you to first contact us directly to seek a resolution
by emailing us at photoanywhere@freelancer.com
For any claim, Photo Anywhere may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. If Photo Anywhere elects arbitration, such arbitration will be initiated through an established alternative dispute resolution (ADR) provider, which is to be selected by you from a panel of ADR providers that Photo Anywhere will provide to you. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
All claims you bring against Photo Anywhere must be resolved in accordance with the terms of this User Agreement. All claims filed or brought contrary to this User Agreement shall be considered improperly filed and a breach of this User Agreement. Should you file a claim contrary to the terms of this User Agreement, Photo Anywhere may recover its legal fees and costs (including in-house lawyers and paralegals), provided that Photo Anywhere has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
You agree that you will not pursue any claims arising under this User Agreement on a class or other representative basis and will not seek to coordinate or consolidate any arbitration or action hereunder with any other proceeding.
If any proceeding by or against you is commenced under any provision of any bankruptcy or insolvency law, Photo Anywhere will be entitled to recover all reasonable costs or expenses (including reasonable legal fees and expenses) incurred in connection with the enforcement of this User Agreement.
Photo Anywhere’s failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
The Application may display rates in the local currency of the location where the Application is being accessed, in addition to the actual amount. These rates are based on a conversion from the originating currency using indicative market exchange rates. You understand and agree that these rates are only indicative and the amount specified in the origin currency is the actual amount.
We reserve the right to reject any request for a conversion of currency at any time.
You are responsible for all risks associated with converting and maintaining funds in various available currencies, including but not limited to the risk that the value of these funds will fluctuate as exchange rates change, which could result in decreases in the value of your funds in aggregate. You must not use (or attempt to use) the Application to engage in speculative trading, which could result in substantial losses. We are not a financial services provider.
All information included on the Application in respect of currency conversion is general information only. Use of currency conversion is at your own risk. Currency conversions are final and irreversible.
This User Agreement supersedes any other agreement between you and the Company. If any part of this document is found to be unenforceable, that part will be limited to the minimum extent necessary so that this document will otherwise remain in full force and effect. Our failure to enforce any part of this document is not a waiver of any of our rights to later enforce that or any other part of this documents. We may assign any of our rights and obligations under this document from time to time.
If there is a dispute between participants on this site, or between users and any third party, you agree that the Company is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release the Company, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or Photo Anywhere Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor."
You agree that you will not use any robot, spider, scraper or other automated means to access the Application via any means, including for the avoidance of doubt access to our API or application programming interface, or any website associated with Photo Anywhere, for any purpose without our express written permission.
Additionally, you agree that you will not:
1. take any action that imposes or may impose (in our sole discretion, exercised reasonably) an unreasonable or disproportionately large load on our infrastructure;
2. interfere with, damage, manipulate, disrupt, disable, modify, overburden, or impair any device, software system or network connected to or used (by you or us) in relation to the Application or your Account, or assist any other person to do any of these things, or take any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure;
3. copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for your information) from the websites without the prior express written permission of Photo Anywhere and the appropriate third party, as applicable;
4. interfere or attempt to interfere with the proper working of the Websites, services or tools, or any activities conducted on or with the Application, services or tools; or
5. bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Application.
You may close your Account at any time. The option is located in the Account Settings.
Account closure is subject to:
1. not having any outstanding Project on the Application;
2. resolving any outstanding matters (such as a suspension or restriction on your Account); and
3. paying any outstanding fees or amounts owing on the Account.
We may retain some of your personal information to satisfy regulatory requirements and our own external obligations. Closing your account does not necessarily delete or remove all of the information we hold.
We use your information as described in the Photo Anywhere Privacy Policy. If you object to your information being transferred or used in this way then you must not use our services. For the avoidance of doubt, your name and personal details shall be used for identity purposes in the normal course of conducting business in this online marketplace. This may include on invoices and purchase orders including but not limited to between transacting parties, including those automatically generated on awarding, accepting and payment.
You will indemnify us (and our officers, directors, agents, subsidiaries, joint venturers and employees) against any claim or demand, including legal fees and costs, made against us by any third party due to or arising out of your breach of this Agreement, or your infringement of any law or the rights of a third party in the course of using the Application and Photo Anywhere Services.
In addition, we can apply any funds in your Account against any liabilities you owe to us or loss suffered by us as a result of your non-performance or breach of this User Agreement.
You must immediately notify us upon becoming aware of any unauthorised access or any other security breach to the Application, your Account or the Photo Anywhere Services and do everything possible to mitigate the unauthorised access or security breach (including preserving evidence and notifying appropriate authorities). Your User Account is yours only, and you must not share your password with others. You are solely responsible for securing your password. We will not be liable for any loss or damage arising from unauthorised access of your account resulting from your failure to secure your password.
We cannot and do not confirm each User's purported identity on the Application. We may provide information about a User, such as a strength or risk score, geographical location, or third party background check or verification of identity or credentials. However, such information is based solely on data that a User submits and we provide such information solely for the convenience of Users and the provision of such information is not an introduction, endorsement or recommendation by us.
The Application is a dynamic time-sensitive Application. As such, information on the Website will change frequently. It is possible that some information could be considered offensive, harmful, inaccurate or misleading or mislabelled or deceptively labelled accidentally by us or accidentally or purposefully by a third party.
Our Photo Anywhere Services, the Application and all content on it are provided on an 'as is', 'with all faults' and 'as available' basis and without warranties of any kind either express or implied. Without limiting the foregoing, we make no representation or warranty about:
1. the Application, or any Seller Services or Photo Anywhere Services;
2. the accuracy, reliability, availability, veracity, timeliness or content of the Application or any Seller Services or Photo Anywhere Services;
3. whether the Application or Seller Services or Photo Anywhere Services will be up-to-date, uninterrupted, secure, error-free or non-misleading;
4. whether defects in the Application will be corrected;
5. whether the Application, the Seller Services or the Photo Anywhere Services or any data, content or material will be backed up or whether business continuity arrangements are in place in respect of the Application, Seller Services or Photo Anywhere Services;
6. any third party agreements or any guarantee of business gained by you through the Application, Seller Services or Photo Anywhere Services or us; or
7. the Application, Seller Services or Photo Anywhere Services or infrastructure on which they are based, being error or malicious code free, secure, confidential or performing at any particular standard or having any particular function.
To every extent permitted by law, we specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose, quality, suitability and non-infringement.
In no event shall we, our related entities, our affiliates or staff be liable, whether in contract, warranty, tort (including negligence), or any other form of liability, for:
1. any indirect, special, incidental or consequential damages that may be incurred by you;
2. any loss of income, business or profits (whether direct or indirect) that may be incurred by you;
3. any claim, damage, or loss which may be incurred by you as a result of any of your transactions involving the Application.
The limitations on our liability to you above shall apply whether or not we, our related entities, our affiliates or staff have been advised of the possibility of such losses or damages arising.
Notwithstanding the above provisions, nothing in this User Agreement is intended to limit or exclude any liability on the part of us and our affiliates and related entities where and to the extent that applicable law prohibits such exclusion or limitation including those within the Competition and Consumer Act 2010 (Cth) and relevant state fair trading legislation.
To the extent that we are able to limit the remedies available under this User Agreement, we expressly limit our liability for breach of a non-excludable condition or warranty implied by virtue of any legislation to the following remedies (the choice of which is to be at our sole discretion) to the supply of the Photo Anywhere services again or the payment of the cost of having the Photo Anywhere services supplied again.
As some jurisdictions do not allow some of the exclusions or limitations as established above, some of these exclusions or limitations may not apply to you. In that event, the liability will be limited as far as legally possible under the applicable legislation. We may plead this User Agreement in bar to any claim, action, proceeding or suit brought by you, against us for any matter arising out of any transaction or otherwise in respect of this User Agreement.
You and we agree that you and we will only be permitted to bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless both you and we agree otherwise, the arbitrator may not consolidate or join more than one person's or party's claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. In addition, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favour of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party's individual claim(s). Any relief awarded cannot affect other Users.
Legal notices may be served to the email address you provide to Photo Anywhere during the registration process. Notice will be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid or that the email has not been delivered. Alternatively, we may give you legal notice by mail to the address provided by you during the registration process. In such case, notice will be deemed given three days after the date of mailing.
Any notices to Photo Anywhere must be given by registered ordinary post (or if posted to or from a place outside Australia, by registered airmail).
This Agreement will be governed in all respects by the laws of New South Wales, Australia. We encourage you to try and resolve disputes using certified mediation (such as online dispute resolution processes). If a dispute cannot be resolved then you and Photo Anywhere irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
The provisions of this User Agreement are severable, and if any provision of this User Agreement is held to be invalid or unenforceable, such provision may be removed and the remaining provisions will be enforced. This Agreement may be assigned by us to an associated entity at any time, or to a third party without your consent in the event of a sale or other transfer of some or all of our assets. In the event of any sale or transfer you will remain bound by this User Agreement.
Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
Our failure to act with respect to an anticipated or actual breach by you or others does not waive our right to act with respect to subsequent or similar breaches. Nothing in this section shall exclude or restrict your liability arising out of fraud or fraudulent misrepresentation.
You consent to receive notices and information from us in respect of the Application and Photo Anywhere Services by electronic communication. You may withdraw this consent at any time, but if you do so we may choose to suspend or close your Account.
It is important to read and understand all our policies as they provide the rules for trading on the Photo Anywhere Application. In addition there may be specific policies or rules that apply, and it is your responsibility to check our Help and FAQ pages and policies to make sure you comply. Our policies, including all policies referenced in them, are part of this User Agreement and provide additional terms and conditions related to specific services offered on our Application, including but not limited to:
· Privacy Policy
· Code of Conduct
· Dispute Resolution Policy
·
Copyright Infringement
Process
Each of these policies may be changed from time to time. Changes take effect when we post them on the Photo Anywhere Application. When using particular services on the Application, you are subject to any posted policies or rules applicable to services you use through the Website, which may be posted from time to time. All such policies or rules are incorporated into this User Agreement.
Photo Anywhere Pty Limited is located at Level
37, Grosvenor Place, 225 George Street, Sydney NSW 2000, Australia.
This Agreement contains the entire understanding and agreement between you and Photo Anywhere. The following Sections survive any termination of this Agreement: Fees And Services (with respect to fees owed for our services), Release, Content, No Warranty As To Content, Limitation Of Liability, Indemnity, Bar To Action, No Class Actions, Legal Limitations, and Disputes With Us.
Photo Anywhere reserves to the greatest extent possible all rights, without limiting any other remedies, to limit, suspend or terminate our service(s) and or user account(s), suspend or ban access to our services, remove any content, and to take any and all technical or legal steps to ban users.
Without limiting the reasons for taking the aforementioned actions, conduct giving rise to this response could include:
1. use of our services for any illegitimate or non bona fide purpose
2. creating problems with other users or potential legal liabilities
3. infringing the intellectual property rights of third parties
4. acting inconsistently with the letter or spirit of any of our policies
5. abuse of any staff members including inappropriate or unreasonable communications
6. any attempt to use the Photo Anywhere Application or Photo Anywhere Services for any objectionable purpose
If you have any questions about this User Agreement or if you wish to report breaches of this User Agreement, please contact us by emailing us at support@photoanywhere.com
This Agreement was last modified on 26 February 2021.