Terms and Conditions

 

Contractual agreement between user and www.bnyphoto.com

 

Welcome to www.bnyphoto.com. The www.bnyphoto.com website (the "Site") is comprised of various web pages operated by Virtuous Cycle LLC. www.bnyphoto.com is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein (the "Terms"). Your use of www.bnyphoto.com constitutes your agreement to all such Terms. Please read these terms carefully and keep a copy of them for your reference.

 

www.bnyphoto.com is an E-Commerce Site.

 

Provide photographic services, based in customers lifestyle, to use in their dating, business and social media profiles.

 

1.Privacy

Your use of www.bnyphoto.com is subject to Virtuous Cycle LLC's Privacy Policy. Please review our Privacy Policy, which also governs the Site and informs users of our data collection practices.

 

2. Definitions and Interpretation

2.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:

 

“Business Day” means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in the United States of America;


“Calendar Day” means any day of the year;

 

“Contract” means the contract for the provision of www.bnyphoto.com’s Services, as explained in Clause 5;

 

“License” means a non-exclusive, perpetual, non-transferrable, license granted to you by www.bnyphoto.com to use the photographs for non-commercial purposes under Clause 6;

 

“Month” means a calendar month;

 

“On-Site Photographer” means the individual or company assigned by www.bnyphoto.com to shoot the photographs on behalf of www.bnyphoto.com in accordance with the Order Confirmation;

 

“Order” means your order for www.bnyphoto.com services as described from time-to-time on www.bnyphoto.com website;

“Order Confirmation” means the www.bnyphoto.com acceptance and confirmation of your Order;

 

“Package” means a package of the www.bnyphoto.com’s services defining the number, types, pricing and other matters in relation to the www.bnyphoto.com services, as detailed on www.bnyphoto.com;

 

“Photographer’s Services” means the services provided by www.bnyphoto.com ;

 

“Photo Shoot” means all stages of www.bnyphoto.com’s services provided to you including preparation beforehand, the taking of Photographs and the processing of Photographs (references to “the date of the Photo Shoot shall refer to the date on which the Photographer will be taking the photographs); and,

 

“Price” means the price payable for www.bnyphoto.com’s services (excluding any additional costs incurred under sub-Clause 5.5).

 

 ‘Photographer’, means www.bnyphoto.com, unless the express words or context clearly indicates the On-Site Photographer defined in Section 1.1.

 

 

3.Electronic Communications

Visiting www.bnyphoto.com or sending emails to Virtuous Cycle LLC constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communications be in writing.

 

4.Your Account

If you use this site, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. You may not assign or otherwise transfer your account to any other person or entity. You acknowledge that Virtuous Cycle LLC is not responsible for third party access to your account that results from theft or misappropriation of your account. Virtuous Cycle LLC and its associates reserve the right to refuse or cancel service, terminate accounts, or remove or edit content in our sole discretion.

 

5.Contracts

 

These Terms and Conditions govern the sale and provision of the www.bnyphoto.com’s Services and will form the basis of the Contract between you and www.bnyphoto.com. Under the Contract, www.bnyphoto.com will provide www.bnyphoto.com’s Services and you will pay for them in accordance with the terms set out in these Terms and Conditions. Before submitting an Order, please ensure that you have read these Terms and Conditions carefully.

 

5.1 Nothing provided by www.bnyphoto.com including, but not limited to, sales and marketing literature, price lists and other material constitutes a contractual offer capable of acceptance. Your Order constitutes a contractual offer that www.bnyphoto.com may, at its sole discretion, accept in writing. Only upon such written acceptance may a contract be formed.

 

5.2 Order Confirmations will be provided in writing, normally in the form of an automatically generated e-mail to you at the e-mail address given in your Order (which www.bnyphoto.com will also use as the main means of contact with you). A legally binding contract will be created when www.bnyphoto.com sends to you by email the Order Confirmation upon terms described therein, in accordance with Section 3.6, below.

 

5.3 The following information will be given or made available to you prior to the formation of the Contract between you and www.bnyphoto.com, save for where such information is already apparent from the context of the transaction:

 

5.3.1 the main characteristics www.bnyphoto.com;

 

5.3.2 the total Price for www.bnyphoto.com’s services including taxes or, if the nature of www.bnyphoto.com’s services are such that the Price cannot be calculated in advance, the way it will be calculated.

 

5.3.3 the arrangements for payment, performance of www.bnyphoto.com’s services and the time by which (or within which) the Photographer undertakes to perform the Photographer’s Services;

 

5.3.4 the www.bnyphoto.com complaints handling policy;

 

5.3.5 any provisions regarding the duration of the Contract that may not be apparent or otherwise stated in the terms and conditions;

5.3.6 where applicable, the functionality, including appropriate technical protection measures, of digital content; and

 

5.3.7 where applicable, any relevant compatibility of digital content with hardware and software that www.bnyphoto.com is aware of or might reasonably be expected to be aware of.

 

3. Orders

3.1 All matters arising from or related to Orders for www.bnyphoto.com made by you will be subject to these Terms and Conditions.

3.2 When placing an Order, you will be required to provide the following details:

 

3.2.1. your name, phone number and email address;

 

3.2.2. your preferred location for the Photo Shoot from the choices provided, or confirmation of a special or preferred location if we provide that service in your chosen area;

 

3.2.3. your preferred date for the Photo Shoot;

 

3.2.4. the Package you wish to select; and,

 

3.2.5. any special requirements you may have for the Photo Shoot.

 

3.3 We cannot guarantee and do not warrant that your preferences in clause 3.2 above (photographer, location, date and any special requirements) will be available or suitable. You will receive from us an Order Confirmation, as per clause 5.2 above, which will confirm (among other things) whether the selected location is available.

 

3.4. We understand busy personal schedules and seek to accommodate requests for rescheduling as much as we reasonably can without causing undue loss or financial burden to www.bnyphoto.com’s photographers. You may change your Order at any time up to twenty-four (24) hours prior to 12:01 am on the date of the Photo Shoot by contacting www.bnyphoto.com, who will use reasonable efforts to find a mutually convenient time for a rescheduled appointment. Please note that there may be certain changes, such as change of location that cannot be accommodated prior to the date of the Photo Shoot. Under certain circumstances, if you reschedule the Photo Shoot within the 24-hour period, an additional fee, may be payable, reflecting www.bnyphoto.com lost opportunity to make bookings with other customers. Please refer to Clause 9 for further details on Cancellation and Rescheduling. www.bnyphoto.com may not be able to accommodate a request for a rescheduled Photo Shoot if a booking has already been made by another customer on your requested date.

 

3.5. If your Order is changed pursuant to your request, www.bnyphoto.com will inform you of any change to the Price in writing.

 

3.6 Your order will be accepted, and a legally binding contract formed when www.bnyphoto.com sends to you the Order Confirmation as stated in Clause 2.3.

 

4. Price and Payment

4.1 The Price www.bnyphoto.com’s Services will be calculated based upon the Package that you choose, as detailed on the Photographer’s website at the time of your Order.

 

4.2. The Photographer’s prices may change at any time; however, these changes will not affect Orders that have already been accepted

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4.3. All Prices include VAT. If the rate of VAT changes between the date of your Order and the date of your payment, the Photographer will adjust the rate of VAT that you must pay. Changes in VAT will not affect any Prices where you have already made payment in full.

 

4.4. You must bring your own clothing, non-photographic equipment and props to the Photo Shoot. Neither the Photographer nor the On-Site Photographer will provide these.

 

4.5. Based upon your special requests, www.bnyphoto.com may, with your prior agreement, charge reasonable expenses in addition to the Price, including travel, sustenance and accommodation, and additional service costs, digital capture costs, as well as any fees relating to changes you wish to make with your Order, and will require payment by you in full prior to delivery of the final images. No such sums will be incurred or charged without your prior written agreement.

 

4.6. You must pay for your Photo Shoot immediately at the time of placing your Order, failing which your Order will be deemed cancelled. Payment must be made through our online payment system or, in certain circumstances, by electronic bank transfer to a bank account nominated by www.bnyphoto.com and must arrive as cleared funds prior to the date of the Photo Shoot.

 

4.7. In certain circumstances, if your Order is cancelled, you may be entitled to a refund. Please refer to Clause 9 for further details.

 

4.8. Any additional expenses agreed under Clause 4.5 above will be invoiced separately prior to the date of the Photo Shoot.

 

4.9. Where any refund is due to you under any of the provisions of these Terms and Conditions (including, but not limited to refunds in the event of cancellation under Clause 12), such refunds will be made as soon as is reasonably possible, and in any event within 14 Calendar Days of the event or circumstance leading to a refund being due to you. Any refund payment shall be made by the same payment method originally used by you unless www.bnyphoto.com agrees to an alternative method.

 

5. The Photographer’s Services

5.1 As required by law, www.bnyphoto.com and the On-Site Photographer will provide www.bnyphoto.com’s Services with reasonable skill and care, consistent with best practices and standards in the non-commercial photography market, and in accordance with any information provided by the On-Site Photographer about him/herself and the www.bnyphoto.com’s Services.

 

5.2 When placing your Order, you will choose your Package and specify the subject matter of the Photo Shoot. You may, no later than forty-eight (48) hours prior to the date of the Photo Shoot, request www.bnyphoto.com to consider any specific photographs or compositions that you may prefer. All packages include a pre-session, over the phone or online consultation, to discuss your preferences with the Photographer after you place your Order. However, it is strictly within the discretion and judgement of www.bnyphoto.com or the On-site Photographer as to whether your preferred photographs or compositions may be accommodated. Wherever reasonably possible, and strictly within the discretion of the Photographer, on-site requests for the shoot, will accommodated by the Photographer.

 

5.3 Subject to the specification of your chosen Package, and any other preferences you specify (which the On-Site Photographer will use his/her reasonable efforts to accommodate), www.bnyphoto.com or On-Site Photographer shall use his/her sole artistic and professional judgement when selecting equipment and deciding upon factors such as composition, lighting and photographic style.

 

5.4. To be clear, the On-Site Photographer shall be granted creative and artistic license in relation to the choice of locations and poses used. It shall be within the On-Site Photographer’s sole and exclusive discretion and judgement to determine photographic style and the number of photographs taken. Some photographs may not be possible due to changes of the weather and the availability and willingness of subjects. The On-Site Photographer will do his/her best to honor requested photographs but shall not under any circumstances warranty or guarantee any specific picture nor incorporate any specific background or location.

 

5.5. Subject to the nature of the Photo Shoot and to your express preferences, the Photographer will take as many photographs as he/she deems appropriate with a view to providing the best choice when processing and preparing the final photographs to be delivered to you. The number of photographs taken during the Photo Shoot will not affect the Price payable and the final number delivered to you will be determined by your chosen Package.

 

5.6. Light retouching, including light blemish and stray hair removal, shall be included with the www.bnyphoto.com’s Service. Heavier retouching, including such changes as the reduction of wrinkles, can be provided on request for an additional fee, which can be discussed with you by the Photographer upon your written request.

 

5.7. The images from your Photo Shoot will be uploaded to a private gallery, to which you will be given access by means of a unique User ID and Password. Please ensure you have an operable e-mail address, which should be provided to www.bnyphoto.com when placing your order to be able to send you the relevant access codes.

 

5.8. You can expect to be able to view proof images from the www.bnyphoto.com within 2 to 4 weeks of your Photo Shoot. www.bnyphoto.com retains the right to edit the photographs and omit any image. The Photographer shall upload the finished photographs to the gallery no later than one (1) month following the date of the Photo Shoot, in a format determined by your chosen Package. Your license in clause 6 below allows you to download these images.

6. Copyright and License

 

6.1 The copyright in all photographs taken by the Photographer is, and shall remain, the property of the Photographer. Subject to any written agreement stating otherwise (and the payment of an additional fee), you shall not own the copyright in the photographs and may use them only in accordance with this Clause 6.

 

6.2 The License shall become effective upon the delivery of the photographs to you using the means stated in clauses 5.7 and 5.8 above and, subject to the provisions of Clause 6.6, shall continue for the duration of copyright protection (which shall be the life of the Photographer plus 70 years pursuant to the Copyright Act of 1978), after which the photographs will enter the public domain and will no longer be protected by copyright.

 

6.3 You shall have the right to use the photographs only for personal purposes. Commercial use of any kind is prohibited without the Photographer’s prior written agreement.

 

6.4 You may not sub-license the photographs without the Photographer’s prior written consent.

 

6.5 Unless you expressly request otherwise, the Photographer reserves the right to use the photographs in any exhibitions, galleries, advertising or promotional material, provided only that such material is related to the Photographer or his/her services.

 

6.6 The License granted by the Photographer to you may be revoked if you breach any of its terms.

 

7. Problems with the Photographer’s Services and Warranty

 

7.1 The Photographer will always use his/her reasonable efforts to ensure that his/her provision of www.bnyphoto.com’s Services is trouble-free. If, however, there is a problem with www.bnyphoto.com’s Services, please inform the Photographer as soon as is reasonably possible.

 

7.2 The Photographer will use reasonable efforts to remedy problems www.bnyphoto.com’s Services as quickly as is reasonably possible and practical. In addition to your rights in clauses 7.4 and 7.5 below, in the unlikely event that:

 

7.2.1. you are completely dissatisfied with the results of your Photo Shoot; and,

 

7.2.2. this dissatisfaction is based solely on your personal preference and subjective opinion; and,

 

7.2.3. all reasonable attempts at a compromise have been attempted,

 

then the Photographer will reshoot, for which we will charge you again the same fee less a twenty-five (25%) discount or, alternatively and entirely at the Photographer’s discretion, agree that a full or partial refund of the original agreed fee is due to you.

 

7.3 www.bnyphoto.com will not charge you for remedying serious deficiencies or defects in Photographs under this Clause 7 where the deficiencies or defect(s) are not related to anything you have or have not done. If www.bnyphoto.com determines that the problem has been caused by any action or omission on your part, www.bnyphoto.com may charge you a reasonable sum for remedial work required

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7.4 Where a second or further Photo Shoot(s) are booked pursuant to this clause 7, you will be permitted to make use of prints from the second (or subsequent) Photo Shoot only.

 

7.5 Any claim you make as to an alleged defect in or your dissatisfaction with the photographs or services provided must be received by www.bnyphoto.com within 5 days of your receipt of the photographs, accompanied by a written description specifying the defect or the cause or your dissatisfaction. As to any photographs or services provided for which a written claim has not been made within the 5-day period permitted under this section 7.7, such photographs or services shall be conclusively considered conforming in all respects to the Contract and accepted by you.

 

7.6 The foregoing warranties are in lieu of all other warranties and photographer hereby disclaims all other warranties, express or implied, including but not limited to the implied warranties of merchantability, fitness for a purpose and non-infringement. No employee or agent of Photographer, other than www.bnyphoto.com, is authorized to make any warranty in addition to the foregoing.

 

8.Children Under Thirteen

Virtuous Cycle LLC does not knowingly collect, either online or offline, personal information from persons under the age of thirteen. If you are under 18, you may use www.bnyphoto.com only with permission of a parent or guardian.

 

9. Rescheduling and Cancellation/Refund Policy

 

9.1 You may reschedule or cancel the Photo Shoot for any reason at any time, however subject to Clause 10.2, the following shall apply to rescheduling or cancellation:

 

RESCHEDULING:

9.1.1 if you reschedule the Photo Shoot 12 hours prior to the date of the Photo Shoot, in accordance with 9.1 above, no further fees are payable;

 

9.1.2. if you reschedule the Photo Shoot on the date of the Photo Shoot, a surcharge of 50% of the original agreed fee shall be payable to cover our costs;

 

9.1.3 If you cancel the Photo Shoot and the Contract more than forty-eight (48) hours prior to the date of the Photo Shoot, the Photographer will refund all sums paid;

 

9.1.4 If you cancel the Photo Shoot less than forty-eight (48) hours but more than twenty-four (24) hours prior to the date of the Photo Shoot, the Photographer will, at your discretion:

 

  1. Retain all sums paid, and such sums shall count as partial payment towards the rescheduled Photo Shoot; or,

  2.  Refund to you half of the fees paid.

9.1.5 If you cancel the Photo Shoot less than twenty-four (24) hours prior to the date of the Photo Shoot, the Photographer will retain all sums paid;

 

9.1.6 If you fail to appear at the Photo Shoot, we may (at our discretion) be willing to reschedule your Photo Shoot for an additional fee equal to fifty percent (50%) of the original agreed fee; and,

 

 9.1.7 If you arrive late for your Photo Shoot, shooting will begin upon your arrival but will end not later than ten (10) minutes after the scheduled end time. It is important that you arrive on time for your Photo Shoot.

 

9.1.8 All refunds due will be paid to you as soon as is reasonably possible, and in any event within 14 Calendar Days of www.bnyphoto.com acceptance of your cancellation notice.

 

9.2 In addition to sub-clause above, and for the avoidance of doubt, the Photographer is not responsible if you fail to appear or cooperate during your Photo Shoot, nor for missed or unsatisfactory images due to you not providing an adequate brief to the Photographer prior to the date of the Photo Shoot.

 

9.3 The Photographer may cancel the Photo Shoot for any reason at any time up to forty-eight (48) hours prior to the date of the Photo Shoot. If you have made any payment, those sums will be refunded to you within 14 Calendar Days of the Photographer’s notification to you of cancellation.

 

9.4 If, at the Photographer’s sole discretion, it is not possible for a session to take place on a scheduled day due to weather, you can contact us to reschedule the Photo Shoot on an agreed date at no cost to you.

 

10. Links to Third Party Sites/Third Party Services

 

10.1 www.bnyphoto.com may contain links to other websites ("Linked Sites"). The Linked Sites are not under the control of Virtuous Cycle LLC and Virtuous Cycle LLC is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. Virtuous Cycle LLC is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Virtuous Cycle LLC of the site or any association with its operators.

 

10.2 Certain services made available via www.bnyphoto.com are delivered by third party sites and organizations. By using any product, service or functionality originating from the www.bnyphoto.com domain, you hereby acknowledge and consent that Virtuous Cycle LLC may share such information and data with any third party with whom Virtuous Cycle LLC has a contractual relationship to provide the requested product, service or functionality on behalf of www.bnyphoto.com’s users and customers.

 

11. Force Majeure

 

11.1 www.bnyphoto.com or the photographer will not be liable for any failure or delay in performing his/her obligations where that failure or delay results from any cause that is beyond his/her reasonable control. Such causes include, but are not limited to: power failure, internet service provider failure, strikes, lock-outs or other industrial action by third parties, riots and other civil unrest, fire, explosion, flood, storms, earthquakes, subsidence, acts of terrorism (threatened or actual), acts of war (declared, undeclared, threatened, actual or preparations for war), epidemic or other natural disaster, or any other event that is beyond the www.bnyphoto.com or the On-Site Photographer’s reasonable control.

 

11.2 If any event described under this Clause 10 occurs that is likely to adversely affect the www.bnyphoto.com or the Photographer’s performance of his/her obligations under these Terms and Conditions:

 

11.2.1 www.bnyphoto.com will inform you as soon as is reasonably possible;

 

11.2.2 the Photographer’s obligations under these Terms and Conditions will be suspended and any time limits that he/she is bound by will be extended accordingly (where such extension is reasonably possible);

 

11.2.3 www.bnyphoto.com will inform you when the event outside of its reasonable control is over and provide any new dates, times or availability as necessary;

 

11.2.4 except in the case of sub-clause 10.2.5 below, if an event outside of the Photographer’s reasonable control occurs and you wish to cancel the Contract, you may do so in accordance with your right to Cancel under sub-Clause 9;

 

11.2.5. where the event occurs during the Photo Shoot, www.bnyphoto.com will be entitled to retain all fees paid and the Contract shall be considered substantially performed by the Photographer.

 

11.3 Any refunds due to you as a result of that cancellation will be paid to you as soon as is reasonably possible, and in any event within 14 Calendar Days of the Photographer’s cancellation notice.


12. Your Personal Information

 

12.1 All personal information that the Photographer may collect (including, but not limited to, your name and address) will be collected, used and held with reasonable care, subject to the following:

 

12.2 The Photographer may use your personal information to:

 

12.2.1. provide the Photographer’s Services to you;

 

12.2.2. process your payment for www.bnyphoto.com’s services;

 

12.2.3. inform you of new products and services available from him/her. You may request that the Photographer stops sending you this information at any time;

 

12.2.4. the Photographer will not pass on your personal information to any third parties [without first obtaining your express permission].

 

12.3. Should you wish to see a copy of the information we hold about you or have your details removed from our database, please advise us in writing.


13. Other Important Terms

 

13.1 You may not transfer (assign) your obligations and rights under these Terms and Conditions (and under the Contract, as applicable) without the www.bnyphoto.com express written permission.

 

13.2 The Contract is between you and www.bnyphoto.com and Virtuous Cycle LLC. It is not intended to benefit any other person or third party in any way and no such person or party will be entitled to enforce any provision of these Terms and Conditions.

 

13.3 If any of the provisions of these Terms and Conditions are found to be unlawful, invalid or otherwise unenforceable by any court or other authority, that / those provision(s) shall be deemed severed from the remainder of these Terms and Conditions. The remainder of these Terms and Conditions shall be valid and enforceable.

 

13.4 No failure or delay by the Photographer in exercising any of his/her rights under these Terms and Conditions means that the Photographer has waived that right, and no waiver by the Photographer of a breach of any provision of these Terms and Conditions means that the Photographer will waive any subsequent breach of the same or any other provision.

 

 

14. No Unlawful or Prohibited Use/Intellectual Property

 

14.1 You are granted a non-exclusive, non-transferable, revocable license to access and use www.bnyphoto.com strictly in accordance with these terms of use. As a condition of your use of the Site, you warrant to Virtuous Cycle LLC that you will not use the Site for any purpose that is unlawful or prohibited by these Terms. You may not use the Site in any manner which could damage, disable, overburden, or impair the Site or interfere with any other party's use and enjoyment of the Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Site.

 

14.2 All content included as part of the Service, such as text, graphics, logos, images, as well as the compilation thereof, and any software used on the Site, is the property of Virtuous Cycle LLC or its suppliers and protected by copyright and other laws that protect intellectual property and proprietary rights. You agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto.

 

14.3 You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part, found on the Site. Virtuous Cycle LLC content is not for resale. Your use of the Site does not entitle you to make any unauthorized use of any protected content, and you will not delete or alter any proprietary rights or attribution notices in any content. You will use protected content solely for your personal use and will make no other use of the content without the express written permission of Virtuous Cycle LLC and the copyright owner. You agree that you do not acquire any ownership rights in any protected content. We do not grant you any licenses, express or implied, to the intellectual property of Virtuous Cycle LLC or our licensors except as expressly authorized by these Terms.

 

15. International Users

The Service is controlled, operated and administered by Virtuous Cycle LLC from our offices within the USA. If you access the Service from a location outside the USA, you are responsible for compliance with all local laws. You agree that you will not use the Virtuous Cycle LLC Content accessed through www.bnyphoto.com in any country or in any manner prohibited by any applicable laws, restrictions or regulations.

 

 

 

16. Indemnification

 

16.1 You agree to indemnify, defend and hold harmless Virtuous Cycle LLC, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorney's fees) relating to or arising out of your use of or inability to use the Site or services, any user postings made by you, your violation of any terms of this Agreement or your violation of any rights of a third party, or your violation of any applicable laws, rules or regulations. Virtuous Cycle LLC reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Virtuous Cycle LLC in asserting any available defenses.

 

17. Arbitration

 

In the event the parties are not able to resolve any dispute between them arising out of or concerning these Terms and Conditions, or any provisions hereof, whether in contract, tort, or otherwise at law or in equity for damages or any other relief, then such dispute shall be resolved only by final and binding arbitration pursuant to the Federal Arbitration Act, conducted by a single neutral arbitrator and administered by the American Arbitration Association, or a similar arbitration service selected by the parties, in a location mutually agreed upon by the parties. The arbitrator's award shall be final, and judgment may be entered upon it in any court having jurisdiction. In the event that any legal or equitable action, proceeding or arbitration arises out of or concerns these Terms and Conditions, the prevailing party shall be entitled to recover its costs and reasonable attorney's fees. The parties agree to arbitrate all disputes and claims regarding these Terms and Conditions or any disputes arising as a result of these Terms and Conditions, whether directly or indirectly, including Tort claims that are a result of these Terms and Conditions. The parties agree that the Federal Arbitration Act governs the interpretation and enforcement of this provision. The entire dispute, including the scope and enforceability of this arbitration provision shall be determined by the Arbitrator. This arbitration provision shall survive the termination of these Terms and Conditions.

 

18. Class Action Waiver

 

Any arbitration under these Terms and Conditions will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both you and Virtuous Cycle LLC agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.

 

19.Liability Disclaimer

 

19.1. Subject to clause 19.2 below:

 

19.1.1. The Photographer takes great care with respect to the exposure, retouching, and transportation of digital captures, proofs and prints. However, in the unlikely event that all the originals are lost, stolen, damaged or destroyed while in the Photographer’s possession, the Photographer’s liability shall be limited to the refund of all payments received, or a reshoot, which can be scheduled at a mutually convenient time at no additional cost. The limit of liability for partial loss or damage of originals shall be a pro-rated amount of the total amount, based on the percentage of originals lost or damaged. In the unlikely event that Photographer or On-Site Photographer is injured or becomes too ill to attend the photo shoot session, the Photographer will make every effort to reschedule to the earliest possible date. If the situation should occur, and the photo shoot session must take place on the scheduled date, Photographer will make every effort to secure a replacement photographer. If the situation should occur and a suitable replacement is not found, responsibility and liability is limited to the return of all payments received; and,

 

19.1.2. the Photographer shall not be responsible or liable to you for any loss, theft or damage to your possessions or property which you have brought to the Photo Shoot.

 

19.2. Your exclusive and sole remedy for any cause or claim whatsoever, including but not limited to, alleged breach or warranty, product liability, negligence or otherwise shall be for money damages in an amount not to exceed 110% of the total amount paid by you to www.bnyphoto.com. In no event shall photographer be liable for special, incidental or consequential damages, whether your claim is in contract, negligence, strict liability or otherwise in consideration of the sale of the photographs and service to you. This limitation applies regardless of whether photographer has been advised of the possibility of such damage and regardless of whether such damage is due to your anticipated use or any personal, professional investment or reliance you may make upon the photographs or the service provided.

 

19.3. The Photographer will be providing the www.bnyphoto.com’s Services for private (i.e. non-commercial) purposes only. The Photographer makes no warranty or representation that the www.bnyphoto.com’s Services are fit for commercial, business or industrial purposes of any kind. By making your Order, you agree that you will not in any manner use the www.bnyphoto.com’s Services or the photographs in any such context. The Photographer will not be liable to you for any loss of profit, loss of business, interruption to business or for any loss of business opportunity.

 

19.4 THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. VIRTUOUS CYCLE LLC AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE AT ANY TIME.

 

VIRTUOUS CYCLE LLC AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. VIRTUOUS CYCLE LLC AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VIRTUOUS CYCLE LLC AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, WITH THE DELAY OR INABILITY TO USE THE SITE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF VIRTUOUS CYCLE LLC OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE.

 

20.Termination/Access Restriction

 

20.1 Virtuous Cycle LLC reserves the right, in its sole discretion, to refuse service to anyone, terminate your access to the site and the related services or any portion thereof at any time, without notice. To the maximum extent permitted by law, this agreement is governed by the laws of the State of California and you hereby consent to the exclusive jurisdiction and venue of courts in California in all disputes arising out of or relating to the use of the Site. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section.

 

20.2 You agree that no joint venture, partnership, employment, or agency relationship exists between you and Virtuous Cycle LLC as a result of this agreement or use of the Site. Virtuous Cycle LLC's performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of Virtuous Cycle LLC's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by Virtuous Cycle LLC with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.

 

20.3 Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and Virtuous Cycle LLC with respect to the Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Virtuous Cycle LLC with respect to the Site. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this agreement and all related documents be written in English.

 

21. Changes to Terms

Virtuous Cycle LLC reserves the right, in its sole discretion, to change the Terms under which www.bnyphoto.com is offered. The most current version of the Terms will supersede all previous versions. Virtuous Cycle LLC encourages you to periodically review the Terms to stay informed of our updates.

 

Contact Us

 

Virtuous Cycle LLC welcomes your questions or comments regarding the Terms:

 

Virtuous Cycle LLC

828 14 st

Santa Monica, California 90403

 

 

Email Address:

hello@maureeneggleton.com

 

Telephone number:

(323) 642-7325

 

 

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