Terms of Sale and Service

Terms of Sale and Service

Last update: January 28, 2021

BY PURCHASING OR USING PRODUCTS, SOFTWARE OR SERVICES OFFERED BY FOTO MASTER LTD OR ITS AFFILIATES (“FOTO MASTER”), YOU ACCEPT AND AGREE THAT YOU ARE OF THE LEGAL AGE OF MAJORITY IN YOUR COUNTRY OF RESIDENCE AND HAVE CAREFULLY READ THESE TERMS OF SALE AND SERVICE (“TERMS”), UNDERSTAND THEM, AND CONSENT TO BE LEGALLY BOUND BY THEM TO THEIR FULLEST EXTENT. IF YOU DO NOT WANT TO AGREE TO THE TERMS, YOU MUST NOT USE ANY OF THE FOTO MASTER PRODUCTS, SOFTWARE OR SERVICES.

These Terms, together with the End User License Agreement (“EULA”), the Limited Hardware Warranty Policy (“Warranty Policy”), the Privacy Policy (“Privacy Policy”) and any other Foto Master’s policies as may be published from time to time, constitute the entire legal agreement between you and Foto Master (“the Parties”) with respect to any purchase of a Product (as defined below).

1. Definitions
   1. “Confidential Information” shall mean all information or data of a confidential or proprietary nature, whether or not patentable, that has been or will be disclosed to you, including without limitation, know-how, trade secrets, technology information, technical information, software, code, internal information, specifications, methods, inventions, processes, developments or any other data or information that a reasonable person would consider confidential.
   2. “Foto Master Materials” shall mean tutorials, help files, manuals, marketing and promotional materials and any other Foto Master content available to customers as part of the Product purchase.
   3. “Force Majeure Events” shall mean any failure or delay of performance under these Terms caused by reasons or circumstances beyond Foto Master’s control, including without limitation, act of war, act of God, earthquake, hurricane, epidemic, COVID – 19 effects, tornado, fire, flood, failure or delay of third parties to perform their contractual obligations towards Foto Master, or other catastrophic, unpredictable or natural events beyond Foto Master’s control.
   4. “Hardware” shall mean any Foto Master hardware appliances specified in the purchase order or the invoice, excluding Software, License, and Foto Master Materials.
   5. “Intellectual Property Rights” shall mean all intellectual property rights of any kind and nature, including copyrights, design, industrial property and patent rights applicable under local laws, foreign laws and international treaties, related to or in connection with the Product and any associated services thereof, including without limitations, all inventions (patentable and non-patentable), works, copyrightable materials, software, trademarks, logos, service marks, trade names, domain names, specifications, text, code, files, graphics, images, videos, audio content, visual content, audio visual content,
   6. “License” shall mean any license granted to you for the use of the Software, in accordance with and subject to the EULA.
   7. “Product” shall mean any Foto Master products, services, and systems, including without limitation, Hardware, Foto Master Materials, Software and any related documents, deliverables and services of any kind.
   8. “Software” shall mean any Foto Master software governed by the EULA.
2. Orders, Payment and Warranty
   1. Each purchase order (“Order”) submitted by you and received by Foto Master will constitute a legal contract between you and Foto Master which shall be governed by the terms and conditions of these Terms and by any applicable addenda, whether or not these documents are referenced on the Order. Any additional or conflicting terms and conditions will not be effective unless agreed in writing by Foto Master.
   2. All due amounts invoiced will be paid in the currency specified on the applicable invoice, and prepaid by you as a primary condition before any delivery of Product or activation of a License. You will bear any costs, charges and expenses associated with the shipping, purchase and delivery of the Product, including all country, provincial, government, state and local sales, use, goods and services, value added, excise, privilege and similar levies or taxes.
   3. All deposits (including any initial deposits paid upon submitting an Order), fees and payments paid or payable for the Product are non refundable and non cancellable.
   4. All purchases are final, and Products are non returnable to the extent permitted by law.
   5. The only conditions of warranty apply to the Product are those which are set out in the Warranty Policy. Any other warranties or representations are expressly void and shall have no effect whatsoever.
   6. You may choose to use financing or personal loans services, provided by third parties, in order to complete the payment process. It is hereby clarified that Foto Master has no control or liability over those companies services or practices, and you assume all risks associated with your use of such services.
3. Shipping and Delivery
   1. Foto Master makes efforts to ship the Product within a reasonable time. Estimated shipping dates will be assigned by Foto Master to you as soon as practicable. The estimated date of delivery is dependent on the freight company’s performance. You may follow up the updated delivery date by checking the tracking number of the freight company you are provided with.
   2. Where applicable, you shall pay the shipping and delivery charges in addition to the purchase price for the Products, which will be included in the invoices issued by Foto Master.
   3. Notwithstanding the foregoing, it is hereby clarified and agreed by the Parties that all dates provided for the shipping or delivery of the Product are estimates only and actual delivery date may be affected by various factors such as your location, the accuracy of the address details provided for delivery, availability of parts or components, the freight company’s performance and Force Majeure Events (as defined below). Foto Master shall not be liable for any delay in delivery, including for any damages or losses arising out of or in connection with such delay, for whatsoever reason.
   4. If, for any reason, you fail or refuse to accept delivery of Product when it is ready for you, then at that time Foto Master may store the Product at its premises and you will be liable for all related costs and expenses, including without limitation, storage fees and insurance.
4. Intellectual Property
   1. All Intellectual Property Rights shall be fully owned by Foto Master and its licensors.
   2. You will not copy, distribute, sell, rent, display, make publicly available, decompile, disassemble, commercially use, reverse engineer, combine with other materials, translate, modify or create derivative works based on any Intellectual Property Rights, unless expressly permitted by these Terms or you have received Foto Master’s written consent.
5. Support and Upgrades Services
   1. Upon purchasing a Product, Foto Master will provide you with technical support, software upgrades services and a permission to participate in the Lead Distribution Platform (“LDP”), for one year (“Initial Term”). In addition, you may be entitled to a remote session with the Foto Master’s support team before your initial use of the Product.
   2. After the expiration of the Initial Term, you will have an option to purchase a subscription term of software upgrades, LDP participation and support services, renewed on a yearly basis (“Subscription Term”).
   3. The fees for the Subscription Term (“Subscription Fees”) will be paid through Foto Master’s designated payment processor(s) (e.g. Paypal), and are subject to their service terms and conditions. The Subscription Fees are non-refundable and non cancellable, to the extent permitted by applicable law.
   4. The Subscription Fees may be changed from time to time, as per Foto Master’s sole discretion.
   5. You agree that the Subscription Term will automatically be renewed on a yearly basis at the same price, unless otherwise has been notified to you (“Auto Renewal Term”).
   6. You will be able to terminate the Auto Renewal Term prior to the expiration of the current term at any time, by simply changing the relevant setting at your payment processor’s account used for the payment. For an example, please refer to the Paypal’s guidelines on how to cancel auto payments: https://www.paypal.com/gi/smarthelp/article/how-do-i-cancel-an-automatic-payment-i-have-with-a-merchant-faq2058.
   7. Foto Master makes reasonable efforts to give you an appropriate service. However, Foto Master does not and cannot guarantee or warrant that all the issues addressed to its support team will be resolved or will never show up again.
6. Limitation of Liability
   1. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FOTO MASTER OR ITS RESPECTIVE AFFILIATES, EMPLOYEES, MANAGERS AND LICENSORS BE LIABLE TO YOU OR OTHER THIRD PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL AND CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND OR NATURE, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, BUSINESS OPPORTUNITIES, SAVINGS, INVESTMENTS OR TIME ARISING OUT OF OR IN CONNECTION WITH FOTO MASTER’S FAILURE OR DELAY TO PERFORM ANY OF ITS OBLIGATIONS UNDER THESE TERMS, FOR WHATSOEVER REASON, WHETHER SUCH DAMAGES OR LOSSES ARE BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND EVEN IF FOTO MASTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
   2. TO THE EXTENT THE AFOREMENTIONED STATEMENTS CANNOT BE DISCLAIMED UNDER THE APPLICABLE LAW, FOTO MASTER’S ENTIRE LIABILITY AND YOUR SOLE REMEDY FOR ALL CLAIMS RELATED TO OR ARISING OUT OF THIS TERMS FOR ANY CAUSE AND FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, STATUTORY OR OTHERWISE, INCLUDING NEGLIGENCE AND STRICT LIABILITY, WILL NOT EXCEED THE AMOUNT OF THE PURCHASE PRICE PAID BY YOU FOR THE PRODUCT. THIS LIMITATION OF LIABILITY WILL BE EFFECTIVE EVEN IF FOTO MASTER OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY DAMAGES OR VIOLATIONS.
   3. EXCEPT AS EXPRESSLY STATED IN THE WARRANTY POLICY, THE PRODUCT IS PROVIDED TO YOU ON THE BASIS OF “AS-IS” AND “AS-AVAILABLE” WITHOUT ADDITIONAL WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESSED OR IMPLIED.
7. Use of the Product
   1. Your use of the Product is limited solely to your personal business use. You shall not sell, resell, license, sub-license, lease, assign, transfer or otherwise distribute the Software and the Foto Master Materials to any other third party, or use the Product for illegal, harmful or offensive purposes.
   2. You will not purchase Products for resale or reproducing purposes unless you have received Foto Master’s prior written approval.
   3. You will use the Product only in a safe manner and in accordance with all applicable safety codes and regulations, including with respect to electrical safety. Without derogating from the above, please make sure to use the Product only on a flat and safe surface, and to keep the Product environment free of any hazards.
   4. The operation of some Products may require you to have a device aligned with certain system requirements. Non alignment with these requirements may limit your ability to use those Products.
   5. Your use of the Software and Foto Master Materials is subject to additional terms and conditions as outlined in the EULA.
8. Beta Services
   1. Foto Master may publish, from time to time, beta and experimental services for testing and evaluation purposes, such as experimental cloud servers, storage and bandwidth options for uploading content (“Beta Services”). Beta Services may be modified at any time as per Foto Master sole discretion. The Beta Services do not form part of the License or any upgrade or support service of Foto Master and may not be as reliable, available or secure as the official services of Foto Master.
   2. FOTO MASTER WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE BETA SERVICES FOR WHATSOEVER REASON. BY USING THE BETA SERVICES YOU ASSUME ALL RISKS ASSOCIATED THEREWITH.
   3. The Beta Services will be subject to the Experimental Services Terms as outlined in the EULA.
9. Force Majeure
   1. Foto Master shall not be liable for any Force Majeure Event. However, Foto Master will use reasonable efforts to mitigate the effect of Force Majeure Events on its obligations under these Terms.
   2. It is hereby clarified and agreed that in the event of a Force Majeure Event, all deposits, payments and other fees paid or payable by you under these Terms are non refundable and non cancellable, and will continue to be in effect to their fullest extent.
10. Confidentiality
    1. You shall keep in strict confidence all Confidential Information related to or associated with the Product, and shall not disclose it to any third party without the prior written consent of Foto Master.
11. Indemnity
    1. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS FOTO MASTER AND ITS AFFILIATES, EMPLOYEES, DIRECTORS, AGENTS AND REPRESENTATIVES FROM ANY AND ALL CLAIMS, LOSSES, COSTS, DAMAGES, EXPENSES AND LIABILITIES, INCLUDING REASONABLE ATTORNEYS’ FEES AND SETTLEMENT COSTS, ARISING OUT OF OR IN CONNECTION WITH ANY BREACH OF THESE TERMS BY YOU OR BY OTHER THIRD PARTY ACTING ON YOUR BEHALF.
    2. THE PROVISIONS OF THIS SECTION SHALL SURVIVE ANY TERMINATION OF THESE TERMS.
12. Title and Risk
    1. Risk and title to and in the Hardware pass to you upon delivery of the Product, whether to you or your designee. Notwithstanding the foregoing and to the extent permitted by law, Foto Master shall retain the title in and to the Hardware until full payment for the Product is received. In the event that the payments for the Product are divided into monthly credit payments, Foto Master retains the title until all credit payments are completed.
    2. Title to the Software, License and Foto Master Materials is hereby excluded and shall fully remain with Foto Master at all times.
13. Termination
    1. These Terms shall remain in effect until being terminated by Foto Master due to one or more of the following reasons: (a) you breach any of the provisions of these Terms and fail to cure such breach within five days written notice; (b) you infringe any of Foto Master’s rights under these Terms, including without limitation, Intellectual Property and confidentiality rights; (c) you knowingly damage Foto Master’s business or other commercial interests; or (d) you become insolvent, file a bankruptcy petition, or institute proceedings for liquidation.
    2. Upon termination of these Terms, you shall cease using the Software and any related services, including without limitation, Foto Master Materials and subscription programs.
    3. Termination of these Terms, for whatsoever reason, will not affect your obligation to pay any due payments, fees and amounts accrued prior to the termination. You agree to pay such payments no later than the date of termination. No refund shall be available for any unused prepaid deposits or other payments.
    4. Sections 1,2,4,6,7,9,10,11,13,14,15,16,17,18,19,20,21 shall survive termination of these Terms.
14. Third Party Beneficiary
    1. For any Products covered under these Terms and to you by any of our authorized distributors (“Distributors”), Foto Master and its affiliates will be a third party beneficiary of the agreement between you and the Distributors and shall have the right to enforce the obligations set forth in these Terms and be entitled to any applicable remedy.
15. Privacy
    1. Foto Master cares about your privacy rights. The Privacy Policy describes our practices of collecting, processing, sharing and transferring your personal information. You agree to these practices, including the storage of your personal information on servers and data centers located in the United States and other territories specified in the Privacy Policy. You acknowledge that the laws, regulations, and standards of the countries in which your personal information is stored or processed may be different from those of your own country.
16. Governing Law and Dispute Resolution
    1. These Terms shall be exclusively governed by and construed in accordance with the laws of Israel. All claims, disputes or litigation arising out of these Terms shall be exclusively brought in the contemplated courts located in Hamerkaz district, Israel, without giving effect to any conflicts of laws requiring the application of other jurisdictions.
    2. Without derogating from the above, all claims, disputes and litigation which might arise between you and our Delaware affiliate, FOTOMASTER, LLC, with respect to (i) the Warranty Policy; (ii) payments and deposits; and (iii) shipping and delivery of Products, shall be brought in the courts of Wilmington, State of Delaware, USA, and shall be exclusively governed by the laws of the State of Delaware, without giving effect to any conflicts of laws requiring the application of other jurisdictions. You and Foto Master hereby consent to the personal jurisdiction in the aforementioned courts.
    3. Foto Master shall have the exclusive right to seek injunctive or equitable relief with respect to any violation of these Terms in the jurisdiction where you are located or operating business.
    4. You agree to not object to the jurisdiction of the aforementioned courts based on any ground, including without limitation, improper venue or forum non conveniens.
    5. The application of the United Nations Convention on Contracts for the International Sales of Goods is expressly excluded.
    6. Before initiating a legal proceeding, each Party agrees to try to settle the dispute by sending a written notice to the other Party. If the dispute is not resolved within seven days of notice or as otherwise agreed by the Parties, each Party may initiate a legal proceeding
17. Class Action Waiver
    1. You agree to resolve all disputes with Foto Master on an individual basis only, and to not bring a claim as a plaintiff or a class member in a class, collective, consolidated or representative action, to the extent permitted by law.
18. Severability
    1. If any provision of these Terms is held by a court of competent jurisdiction to be void, invalid, unenforceable or illegal, such provision shall be severed from these Terms and the remaining provisions will remain in full force and effect.
19. Miscellaneous
    1. Foto Master may update these terms and conditions or any part thereof at any time without prior notice to you.
    2. If any provision of these Terms is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable, the remaining provisions of these Terms shall continue in full force and effect.
    3. Foto Master is entitled to assign or transfer its rights and obligations unde these Terms or to any third party, in its sole discretion. You shall not be entitled to assign these Terms or any part of your obligations and rights hereunder to any third party without the prior written consent of Foto Master.
    4. If a licence, consent or other regulatory permission is required to perform your obligations under these Terms, then you shall fulfill such requirement at your own expense.
20. Communications
    1. Foto Master may communicate with you with marketing materials via email, phone, mail, Skype, social media account or any other communication means provided to Foto Master by you. You have the right to ask Foto Master to stop receiving marketing materials at any time, by sending a request to: support@fotomoaster.com or by using the unsubscribe option contained in those communications.
    2. Foto Master will be entitled to contact you at any time with informative communications concerning its legitimate interests, finance issues or other matters required by the applicable law.
21. Notice
    1. Notices must be sent via email or personal delivery, and are deemed given when received by the receiving party. Notices to Foto Master must be sent to Foto Master Legal at support@fotomaster.com, with a copy to FOTOMASTER, LLC, Suite 403 – B, Centre Rd, Wilmington DE, USA, if the notice is designated to FOTOMASTER LLC, or to 2 Meir Weisgal St., Rehovot, Israel, if the notice is designated to Foto Master Ltd.