Terms of Service
1. CONTRACTUAL RELATIONSHIP.
These Terms and Conditions of Use (“Terms”) govern the access and use by end users (individually, an “End User” and collectively, the “End Users”) that desire to hire and/or do hire photographers or videographers (collectively, “Photographers”) via applications, websites, content, products, and services (collectively, the “Services”) made available by Lotus Terrace, LLC DBA ONTHR3 and its subsidiaries and affiliates (collectively, “ONTHR3”). PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THE SERVICES. In these Terms, the words “including” and “include” mean “including, but not limited to.” If you are not an End User but would like to be hired by an End User via the Services to take photographs and/or videos then you are a Photographer and are subject to the “Photographer Terms and Conditions of Use,” which can be found at onthr3.com.
Your access and use of the Services constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and ONTHR3. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. ONTHR3 may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason. Supplemental terms may apply to certain Services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in region-specific disclosures (e.g., a particular city webpage on onthr3.com, the “Site”) or in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services. ONTHR3 may amend the Terms related to the Services from time to time. Amendments will be effective upon ONTHR3’s posting of such updated Terms at this location or the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.
2. THE SERVICES.
ONTHR3 facilitates the connection and interaction between Photographers and End Users that utilize the Services via ONTHR3’s mobile application or websites (each, an “Application”), which allow End Users to arrange and schedule photography and/or videography services (each, a “Session”) with Photographers. As a part of the Services, ONTHR3 also offers online photo editing, printing, delivery and online storage. Unless otherwise agreed by ONTHR3 in a separate written agreement with you, the Services are made available to you solely for your personal use. YOU ACKNOWLEDGE THAT ONTHR3 (A) DOES NOT PROVIDE PHOTOGRAPHY OR VIDEOGRAPHY SERVICES, (B) IS NOT YOUR AGENT, EMPLOYER, OR PARTNER, (C) IS NOT A PHOTOGRAPHY STUDIO, AND (D) IS NOT A “TALENT AGENCY”.
Subject to your compliance with these Terms, ONTHR3 grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case for your personal use. Any rights not expressly granted herein are reserved by ONTHR3 and ONTHR3’s licensors.
Photographers agree in the “Photographer Terms and Conditions of Use” that End Users will own all photographs, videos, and any other content in whatever format that a Photographer create at a Session (collectively, the “Deliverables”) that you book through the Services and, in furtherance thereof, agree to grant, assign, transfer and convey to you all of such Photographer’s right, title and interest in and to the Deliverables (“Assignment”). Notwithstanding the forgoing, Photographers retain a non-exclusive, limited, revocable license to use and display the Deliverables solely on such Photographer’s Onthr3 account for so long as such Photographer has an account and you acknowledge such right of such Photographer. If a Photographer desires to use and/or display the Deliverables for any other purpose then such Photographer agrees to first receive written permission from you. You agree to hold ONTHR3 harmless from and against (a) a Photographer’s failure to honor such Photographer’s agreement that you own the Deliverables and/or (b) the insufficiency, inadequacy or unenforceability of the Assignment, and will look solely to the Photographer for such failure, insufficiency, inadequacy and/or unenforceability. You acknowledge and agree that Photographers are not employees, partners, or agents authorized to act on behalf of or bind ONTHR3 in any way. You hereby grant to ONTHR3 a limited, non-exclusive, irrevocable license to use and display the Deliverables (a) on and/or via the Application and/or (b) to promote the Services.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by ONTHR3 (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services or Applications; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or Applications or unduly burdening or hindering the operation and/or functionality of any aspect of the Services or Applications; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or applications or their related systems or networks.
THIRD PARTY SERVICES AND CONTENT.
The Services and all rights therein are and shall remain ONTHR3’s property or the property of ONTHR3’s licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted as described above; or (ii) to use or reference in any manner ONTHR3’s company names, logos, product and service names, trademarks or services marks or those of ONTHR3’s licensors.
3. YOUR USE OF THE SERVICES
In order to use most aspects of the Services, you must register for and maintain an active account with ONTHR3 (“Account”). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to ONTHR3 certain personal information, such as your name, address, mobile phone number and date of birth, as well as at least one valid payment method (either a credit card or accepted payment partner). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Services or ONTHR3’s termination of this Agreement with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by ONTHR3’s in writing, you may only possess one Account. If you are using the Services or Applications on behalf of an organization, employer or any entity, you certify that you have full legal authority to, and your use of such Services or Applications does, bind such organization, employer or entity to these Terms. If you do not have such authority, then you may not use the Services or Applications.
USER REQUIREMENTS AND CONDUCT.
The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive photography and videography services from Photographers unless they are accompanied by you. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes (e.g., no unlawful adult photography). You will not in your use of the Services cause nuisance, annoyance, inconvenience, trespass or property damage, whether to the Photographer or any other party. In certain instances, you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.
By creating an Account, you agree that ONTHR3 may send you informational text (SMS) messages as part of the normal business operation of your use of the Services. You may opt-out of receiving text (SMS) messages from ONTHR3 at any time by texting the word STOP to the number provided, from the mobile device receiving the messages. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the Services.
ONTHR3 may, in ONTHR3’s sole discretion, create promotional codes that may be redeemed by you for Account credit, or other features or benefits related to the Services and/or a Photographer’s services, subject to any additional terms that ONTHR3 establishes on a per promotional code basis (“Promo Codes”). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by ONTHR3; (iii) may be disabled by ONTHR3 at any time for any reason without liability to ONTHR3; (iv) may only be used pursuant to the specific terms that ONTHR3 establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. ONTHR3 reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that ONTHR3 determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.
ACCOUNT CANCELLATION POLICY.
You have the right to cancel your Account with ONTHR3 at any time but such cancellation shall not relieve you of your obligation to timely pay for a Session. You may cancel your Account by deleting the App from your device or by following the instructions provided through the Service for closing your Account. Once you cancel your Account, as a user your personal information will no longer be viewable by you or Third Party Providers or Photographers unless you have authorized a Third Party Provider or Photographers the right to use your images. Your images will be stored for 30 days post termination or cancellation of your Account, then discarded and no longer retrievable by you or ONTHR3.
CANCELLATION OF A SESSION:
End User Cancellation: You have the right to cancel a Session booked with any Photographer through ONTHR3’S Servicesat any time prior to the start time of the event; however, a cancellation fee of [CANCELLATION FEE AMOUNT] will be charged to you if you cancel suchSession within 24 hours of its start time. Additionally, you will be treated as a no show if you are not present at the specified Session Site within 20 minutes of the Session start time and charged the full price of the Session. It will be at the Photographers discretion if such Photographer would like to complete the Session if you are more than 20 minutes late. It is in ONTHR3’S sole and absolute discretion to determine if a Session was completed timely and appropriately by the applicable Photographer.
Photographer Cancellation: A photographer may cancel a Session only if it is more than two (2) hours from the start of such Session; provided, however, in such event ONTHR3 will make reasonable efforts to locate a different Photographer of the same Level to perform such Session.
USER PROVIDED CONTENT.
ONTHR3 may, in ONTHR3’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to ONTHR3 through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content”). User Content shall further include any and all photos and videos (“Deliverables”) uploaded by you or a Photographer to or via our Site or Application. By providing User Content to ONTHR3 or using the Services by which a Photographer provides User Content to ONTHR3, you grant ONTHR3 a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and ONTHR3’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity. You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant ONTHR3 the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor ONTHR3’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You agree to not provide User Content that is (a) defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by ONTHR3 in its sole discretion, whether or not such material may be protected by law and (b) personal or confidential to a third-party unless you have permission from such third-party to do so. ONTHR3 may, but shall not be obligated to, review, monitor, or remove User Content, at ONTHR3’s sole discretion and at any time and for any reason, without notice to you.
NETWORK ACCESS AND DEVICES.
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. ONTHR3 does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
By choosing a location to shoot your event, you hereby acknowledge and agree that you have authorization or have obtained any requisite approval from the property owner granting you and the Photographer(s) the right to shoot photographs or videos at such location (whether an interior or exterior setting) using the necessary equipment and allowing the use of such Photographers. Such approval must include the right to photographs, digital images, drawings, renderings, and/or accompanying written descriptions of such location.
Within twelve (12) hours after the completion of an event session, the Photographer will deliver the Deliverables to you by uploading up to one-hundred (100) raw images to the Site or Application, for you to download. ONTHR3 will notify you that the Deliverables are available for download (the “Notification”). The Deliverables will be available to share via Facebook or Instagram or for download and you agree to accept the Deliverables as any or all of the following source files: JPEG PNG or PDF. The Deliverables will be made available for you to download for a maximum of (30) days after which the Deliverables will be removed and no longer accessible by you. ONTHR3 will not be responsible for a Photographers failure to deliver the Deliverables to you as set forth herein.
Upon receiving the raw images, you can choose a maximum of three (3) images to be beautified (edited) by ONTHR3 or a Third-Party Provider for no additional cost. The three beautified images will be delivered within 72 hours of your selection. The beautification services are provided to you as is, without any warranty of any kind and remain subject to all other disclaimers set forth in these Terms. You may request that additional images be beautified for a cost of $25 per photo. You will be emailed the estimated turnaround time for your request based on the number of images selected and the number of other images currently in production and when such images are available for download. You acknowledge and agree that ONTHR3 reserves the right to delete such Deliverables from the Service after 30 days. Consequently, it is your responsibility to download the Deliverables within (30) days of receiving the Notification to avoid permanent loss of the Deliverables.
4. USER PAYMENT.
You acknowledge and agree that a Photographers fee a Session shall be determined by multiplying the Photographers hourly rate by the number of hours spent at such Session (“Fee”). A Photographer’s hourly rate shall be determined by such Photographer’s classification level. Currently, Photographers are classified as “LV1,” “LV2,” and “LV3” (each, a “Level”). Base hourly rates for each Level are as follows: (a) LV1 = $60/hour, (b) LV2 = $100/hour, and (c) LV3 = $150/hour. Partial hours shall be pro-rated by quarter-hours (15 minutes, 30 minutes, 45 minutes, 60 minutes) and will be rounded up to the next quarter-hour. By way of example if your Photographer is classified as LV1 and spends 2 hours, 20 minutes at a Session then such Photographer will be deemed to have spent 2 hours, 30 minutes at such Session and your Fee will equal $150. You acknowledge that ONTHR3 will receive twenty-five percent (25%) of such Fee for its Services. You understand that in addition to the Fee, your use of the Services may result in charges to you for services or goods you receive from a Photographer or for other fees incurred by you pursuant to these Terms (collectively, the “Charges”). After you have received services or goods obtained through your use of the Service or incurred fees per these Terms, ONTHR3 will facilitate your payment of the applicable Charges on behalf of itself or the Photographer, as such Photographer’s limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Photographer. Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless services have been canceled within ONTHR3’s time limit or deemed refundable by ONTHR3. All Charges are due at the time of booking and payment will be facilitated by ONTHR3 using the preferred payment method designated in your Account, after which ONTHR3 will send you a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that ONTHR3 may, as the Third Party Provider’s and/or Photographer’s limited payment collection agent, use a secondary payment method in your Account, if available. As between you and ONTHR3, ONTHR3 reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in ONTHR3’s sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. ONTHR3 will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. ONTHR3 may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. This payment structure is intended to fully compensate the Photographer or Third Party Provider for the services or goods provided. ONTHR3 does not designate any portion of your payment as a tip or gratuity to the Photographer. Any representation by ONTHR3 (on ONTHR3’s website, in the Application, or in ONTHR3’s marketing materials) to the effect that tipping is “voluntary,” “not required,” and/or “included” in the payments you make for services or goods provided is not intended to suggest that ONTHR3 provides any additional amounts, beyond those described above, to the Photographer. You understand and agree that, while you are free to provide additional payment as a gratuity to any Photographer who provides you with services or goods obtained through the Service, you are under no obligation to do so. Gratuities are voluntary. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback about your Photographer.