Terms of Service

Updated December 2018

 Welcome to FotoWare's Software as a Service! We're honored to help you with your Digital Asset Management needs.

 These Terms of Service (“Terms”) form a contract between

 (1) FotoWare AS, Bryggegata 7, 0250 Oslo, Norway ("FotoWare"), and
(2) the company or other legal entity accepting these Terms (“Customer”)

 that governs the Customer’s access to and use of the hosted storage solution ("Service") provided by FotoWare for online content storage, sharing and processing of files such as text, audio, video, images, presentations, or other content ("Content"). These Terms apply equally to any software that is used to provide the Service or made available to the Customer in order to facilitate the Service (“Software”).  

Modifications or additions to these Terms may be stated in your Order Form for the Service, which shall be signed by an authorized officer of FotoWare and of the Customer, to be valid.

In the event of a conflict between these Terms and a valid Order Form, the Order Form shall take precedence. 

1. ACCESS TO THE SERVICE

The Customer may use the Service only for business purposes and only within the range of the Customer’s normal business activities, on a non-exclusive basis, solely in strict compliance with these Terms, the documentation that accompanies the Service (the “Documentation”), and all applicable laws, including without limitation, data privacy laws and regulations applicable to the Customer.

2. USER ACCOUNTS

With the exception of content shared publicly as facilitated by features built into the Service, all access to the Service must happen through personal user accounts. When registering a personal user account, the Customer shall provide correct, accurate, current, and complete information about each user through the Service’s registration form and maintain and promptly update the registered data to keep it true, accurate, and complete.

User accounts are personal, and must not be shared between individuals. Account information and passwords shall be kept confidential. The Customer, or any person given access to the Service by the Customer, shall not authorize any third-party to access or use the Service, unless and to the extent FotoWare has provided mechanisms within the Service that clearly allows such use. FotoWare will not be liable for any loss or damage arising from any unauthorized use of personal user accounts. 

The Customer is fully responsible for any use of the Service that is conducted through personal user accounts created by the Customer or anyone working for the Customer, regardless of whether or not the Customer is aware of, or have consented to, such use.

The Customer is responsible for informing anyone who uses the Service for or on behalf of the Customer of the above obligations.

The Customer is obligated to notify FotoWare immediately of any known or suspected unauthorized use of the Service. 

3. PRIMARY CONTACT PERSON

One person, as identified on the Order Form for the Service, will be the primary contact person for all communication in relation to the Service. The Customer is responsible for updating FotoWare of reassignment of this role, and/or any changes in email, phone, or address information. FotoWare is not liable for any results of communication not reaching its intended recipient as a result of this information being out-of-date.

4. CUSTOMER CONTENT AND DATA

FotoWare does not claim ownership of any Content or data that is transmitted, stored, created, or processed through any personal user accounts or otherwise by the Customer. FotoWare does not control, verify, or endorse the Content or data in any way.

The Customer hereby grants FotoWare and our contractors the right to transmit, process, use, and disclose Content or data posted on the Service to the extent necessary to provide the Service, or to comply with any request of a governmental or regulatory body as required by law. To the extent that the Customer’s Content or data includes personally identifiable information, FotoWare’s processing of such data is subject to Clause 24 and the Privacy Policy.

The Customer represents and warrants that it has all the rights to the Content necessary for the Customer to use the Service and grant the rights in this provision, and that the transmission, storage, or use of the content doesn't violate any law or these Terms.

5. RETRIEVAL OF CONTENT AND DATA 

If the Customer cancels the Service, the Customer may request a one-time transfer of all Content and data, including metadata generated in the system, to a server of the Customer’s choice. The Customer must have a valid subscription to the Service for the full duration of the transfer.

6. STORAGE OF CONTENT AND DATA

FotoWare will clearly indicate where the Customer’s Content and data will be stored when the Customer orders the Service. FotoWare stores the Customer’s Content and data in accordance with best industry practices and applicable information security laws and regulations, and keeps at least 3 copies of the Customer’s Content and data to protect from data loss. If the Service is cancelled, FotoWare may store the Customer’s Content and data for up to 90 days before it is permanently deleted from all FotoWare’s systems.

7. TECHNICAL SUPPORT

The Service includes access to Technical Support via web based ticket system at support.fotoware.cloud. Technical Support is available to the primary contact person as defined in Section 3. Technical Support shall use reasonable efforts to respond to all support tickets as soon as possible.

The Customer is responsible for channeling support requests as described in this provision and in accordance with Section 3, and for escalating any support incidents to FotoWare through the primary contact person, cf. Section 3. FotoWare shall not be responsible for handling any support requests submitted to FotoWare by other persons than the primary contact person.

8. SERVICE AVAILABILITY

FotoWare makes no guarantees as to the availability or uptime of the Service (unless you are eligible for the SLA as described below), but will at all times use reasonable efforts to maintain the performance, stability, and uptime of the Service.

The Customer’s use of the Service may be governed by FotoWare’s Service Level Agreement for FotoWeb SaaS (“SLA”), which is available on http://www.fotoware.com/company/legal/service-level-agreement. Whether the Customer’s plan is covered by the SLA is specified on the Order Form for the Service or as part of the  plan details available to the Customer on http://www.fotoware.com/products/fotoweb-as-a-service.

If the Customer’s plan is covered by the SLA, the Customer’s remedies for any failure of the Service are listed, exhaustively, in the SLA. If the SLA does not list a remedy for a given failure, it has no remedy. Service credits gained pursuant to the SLA are forfeit upon termination of this agreement.

9. FAIR USE POLICY

FotoWare does not charge separately for network traffic costs incurred as a result of using the Service, and assigns each account a monthly network quota equal to the provisioned storage for the account. We reserve the right to suspend the Service should network traffic exceed fair use for a significant period of time. Before suspending the Customer’s account(s), we will reach out to notify the Customer of the excessive use, and offer an upgrade of the Customer’s data plan to increase the network quota.

10. ACCEPTABLE USE POLICY ('AUP')

This provision (“AUP”) sets out the rules governing the Customer’s use of the Service. In the event that FotoWare suspects that the Customer is in breach of this AUP, FotoWare may suspend the Customer’s access to the Service without notice. Suspension caused by the Customer’s non-compliance with this AUP or other provisions set out in these Terms, does not affect the Customer’s obligation to pay for the Service in accordance with any applicable Order Forms. The Customer is not entitled to SLA credits for any period of suspension.

The Customer shall not use the Service to harm others or the Service. For example, the Customer shall not use the Service to harm, threaten, or harass another person, organization, or FotoWare. You may not use the Service to attempt to build a similar service or website or to build a product using similar features or functions.

In addition, the Customer shall not, and shall not assist or encourage any third party to:

  • Use the Service in any manner or for any purpose other than as expressly permitted by these Terms, the Privacy Policy, and the Documentation
  • Access or use the Service in any way intended to improperly avoid incurring fees or exceeding user limits or quotas
  • Share passwords or other access information or devices, or otherwise authorize any third party to access or use the Software or the Service
  • Use the Service to engage in any unlawful or fraudulent activity
  • Use the Service in connection with or operation of facilities, systems, devices, or in other situations in which the failure of the Service could lead to death, personal injury, or physical property and/or environmental damage
  • Sell, lend, rent, resell, lease, sublicense, or otherwise transfer any of the rights granted to the Customer with respect to the Service to any third party
  • Modify, alter, tamper with, repair or otherwise create derivative works of the Service or any Software that accompanies the Service
  • Use any unauthorized means to modify, reroute, or gain access to the Service or attempt to carry out these activities
  • Use any automated process or service (such as a bot, a spider, or periodic caching of information stored by FotoWare) to access or use the Service
  • Damage, disable, or impair the Service (or any network connected to the Service)
  • Reverse engineer, disassemble, or decompile the Software used to access the Service
  • Access or attempt to access FotoWare’s other accounts, computer systems, or networks not covered by the Terms
  • Cause inordinate burden on the Service or FotoWare’s system resources or capacity
  • Remove, obscure, or alter any proprietary rights notices pertaining to the Service

FotoWare reserves the right, in its sole discretion, to determine whether and what action to take in response to each such notification, and any action or inaction in a particular instance will not dictate or limit FotoWare’s response to a future complaint.

11. FEES AND PAYMENTS

The Fees for the Service are available on http://www.fotoware.com/produc... or in FotoWare’s price list. The price stated for the Service excludes all taxes and charges. The Customer is responsible for any taxes and all other charges incidental to using the Service (for example, data charges and currency exchange settlements). The Customer shall pay the Fees in the currency specified on the relevant Order Form. Late payment interest shall accrue to any late payments, in accordance with the Norwegian Late Payment Interest Act. FotoWare may choose to suspend the Customer’s access to the Service until payment has been made.

If the Customer has chosen to pay with credit card, FotoWare will store and charge the card according to the specified billing schedule.
Card information is stored securely with our payment provider Nets and FotoWare will never have access to the actual card data.

12. TRIAL PERIODS

The Customer may test the Service for free for a period of 30 days. This trial offer is available once to each company, as identified by the official company registration number in your country of incorporation. The Customer may cancel the Service up until the last day of the trial period without incurring any cost. By continuing to use the Service beyond the trial period, the Customer shall be deemed to have accepted these Terms and Fees as quoted to the Customer before starting the trial period. FotoWare shall issue the first invoice to the Customer on the first day after expiration of the 30 days’ trial period, or as soon as possible thereafter.

13. SUBSCRIPTION PERIOD

The Customer may elect one of the following subscriptions plans and billing options:

  • A monthly subscription plan (“Monthly Plan”). The subscription period shall be one month, and shall automatically renew unless the Customer cancels in accordance with these Terms prior to the renewal date.
  • An annual subscription plan (“Annual Plan”), to be paid in advance. The subscription period will be one year, and will automatically renew each year unless the Customer cancels its plan prior to the renewal date. The Customer is not entitled to cancel, reduce the number of accounts, or downgrade the Service until the anniversary of an Annual Subscription. There will be no refunds for Annual Plan payments.

A Customer subscribing to a Monthly Plan may switch to the Annual Plan at any time. A customer subscribing to an Annual Plan may not change to the Monthly Plan until the end of the one-year term of the Annual Plan.

The Service may not be cancelled within a subscription period as described above. However, the Customer may opt out of automatic renewal by cancelling the chosen subscription prior to the relevant renewal date. 

14. PRICE CHANGES

FotoWare shall have the right to change the prices for the Service by at least 30 days’ notice to the Customer. When the Customer’s subscription renews, the Customer shall be bound by the last published price list on the last day of the expiring term, unless a fixed service period and/or price has been specifically agreed in a valid Order Form or otherwise.

15. UPDATES TO THE SERVICE

FotoWare reserves the right, at its sole discretion, to make necessary unscheduled deployments of changes, updates, or enhancement to the Service at any time.

FotoWare may add or remove functionality or features and suspend or stop a Service.

FotoWare strives to apply updates and changes according to the service windows defined in this document: FotoWare SaaS Maintenance Windows 

If FotoWare at any time plans to undertake a larger system update that causes downtime of more than 1 hour, we will notify affected customers in advance.

16. SOFTWARE

If you receive Software from FotoWare, its use is governed by the End User License Agreement presented at the time of installation or as available through the Software's Help feature.

FotoWare may automatically check your version of the Software. FotoWare may also automatically download to your computer or device new versions of the Software.

Any Software is licensed, not sold. The Customer is granted a non-exclusive, non-sublicensable and revocable license to reproduce and use the Software in such quantities and at such locations as strictly necessary to support the Customer’s use of the Service in accordance with these Terms and any applicable Order Form. The Customer is not entitled to use the Software in any manner or for any purpose not directly related to the Customer’s use of or access to the Service. Unless FotoWare notifies you otherwise, the Software license ends when the Customer’s Service ends. The Customer shall promptly uninstall the Software after end of the Service, or FotoWare may disable it.

The Customer shall not

  • attempt to bypass any technical limitations in the Software;
  • modify, create derivative works from or redistribute the Software in any way;
  • reverse engineer (except if and to the extent permitted by law), decompile, dissassemble, or otherwise attempt to derive the source code related to the Software.

17. INTELLECTUAL PROPERTY RIGHTS

All intellectual property rights in and to the Service, Software and Documentation, including without limitation to user interfaces, logos, trademarks, product or service names, belong solely to FotoWare or FotoWare’s licensors, as the case may be. This contract and the provision of the Service to you does not grant you any rights in or to the Service, Software or Documentation, except to the extent that these Terms explicitly set forth.

18. CONFIDENTIALITY

Information that the Customer gains access to in connection with the Service shall be treated as confidential information and shall not be disclosed to any third party without the consent of FotoWare.

The confidentiality obligations set out in this provision shall not prevent the disclosure of information if the Customer is obligated by law to disclose information. FotoWare shall, if possible, be notified prior to such disclosure.

Information shall not be considered confidential to the extent that the information was already known to the Customer or is accessible to the public.

The Customer undertakes to take all necessary precautions to prevent unauthorised persons from gaining access to, or knowledge of, confidential information. The confidentiality obligation shall apply to the Customer’s employees, subcontractors and other third parties who act on behalf of the Customer.

The confidentiality obligation shall continue to apply after the expiry or termination of a customer relationship.

19. DISCLAIMER OF WARRANTY

Fotoware provides the service "as-is" and "as available". FotoWare makes no representations or warranties of any kind, and all express or implied conditions, representations, and warranties including, without limitation, any implied warranty or condition of merchantability, fitness for a particular purpose, non-infringement, satisfactory quality, non-interference, accuracy of informational content, or arising from a course of dealing, law, usage or trade practice are hereby excluded to the extent allowed by applicable law and are expressly disclaimed by FotoWare, its suppliers and licensors.

20. INDEMNIFICATION

The Customer shall defend and indemnify FotoWare against any cost, loss, damage, or other liability arising from any third party demand or claim that any Content, or the Customer’s use of the Service in breach of these Terms: (a) infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of FotoWare's actions); or (b) violates applicable law.

FotoWare shall defend and indemnify the Customer from any claim that the Service as such infringes the intellectual property rights of a third party. If such claim is set forth, FotoWare shall have the option, in FotoWare’s discretion, to either settle the claim immediately, procure for the Customer the continued and uninterrupted use of the Service, or replace the allegedly infringing part of the Service with a non-infringing part of equal functionality. 

The Customer is obligated to notify FotoWare if the Customer receives a claim or demand that is subject to FotoWare’s indemnification obligation, and FotoWare shall have the same obligation towards the Customer.

21. TERMINATION

FotoWare may terminate the contract with immediate effect, if the Customer is in material breach of these Terms or any other terms and conditions applicable to the use of the Service. If the contract is terminated for breach, you are not entitled to any reimbursements.

FotoWare may terminate the contract for convenience by 30 days’ written notice to the Customer. If FotoWare terminates the contract for convenience, the Customer is entitled to a refund that is proportional to the remaining Service period already paid for.

22. LIMITATION OF LIABILITY 

Notwithstanding anything else in these terms of service to the contrary, the aggregated maximum liability in relation to the services of FotoWare, its affiliates, officers, employees, agents, suppliers and licensors collectively, to customer or any other person or entity using the Service, whether in contract, tort (including negligence), breach of warranty or otherwise, shall be limited to an amount equal to three months of service fees.

Regardless of whether any remedy set forth herein fails of its essential purpose or otherwise, in no event will FotoWare or its suppliers be liable for any lost revenue, profit, or lost or damaged data, business interruption, loss of capital, or for special, indirect, consequential, incidental or punitive damages however caused and regardless of the theory of liability or whether arising out of the use of or inability to use software or otherwise and even if FotoWare or its suppliers or licensors have been advised of the possibility of such damages.

23. PRIVACY AND DATA PROTECTION

In order to operate and provide the Service, FotoWare processes certain personal data on behalf of the Customer. As part of the Service, FotoWare may also automatically upload information about computers or devices on which the Service is used, your use of the Service, and Service performance. FotoWare uses of such information is subject to FotoWare’s Privacy Policy, available at http://www.fotoware.com/company/legal/privacy-policy.

FotoWare and the Customer shall enter into a data processing agreement in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (GDPR). Such data processing agreement shall be deemed an integrated part of the agreement between FotoWare and the Customer regarding the Service.  

Unless otherwise instructed by the Customer in accordance with the above-mentioned data processing agreement, FotoWare shall not store or process other categories of personal data than described in the Privacy Policy, or for any other purpose or in any other manner than described therein. FotoWare is obligated to implement systematic measures for securing the confidentiality, integrity and accessibility of personal data, and to document such measures. FotoWare is also obligated to implement appropriate measures to avoid accidental or unauthorized erasure, alteration or access to personal data and to implement state-of-the-art measures to protect your data from malicious software, virus attacks and similar security threats.

FotoWare shall keep personal data and Content logically separated from data and content belonging to other customers of FotoWare in order to avoid the risk of unintentional tampering with your data and Content.  

Regardless of whether the Customer’s Content or data contains personal data, FotoWare will only access, process or otherwise use the Customer’s data as necessary to facilitate the Service. FotoWare will not allow access to the Customer’s Content or data by any third party, except subcontractors that are subject to a non-disclosure agreement adhering to FotoWare’s obligations pursuant to these Terms.

24. ASSIGNMENT AND TRANSFER

Neither party may transfer or assign its rights and obligations under this contract without the other party’s prior written consent, which shall not be unreasonably withheld. The same shall apply if a party is demerged into several companies or in case of assignment to a subsidiary or another company within the same group, but not if a party is merged with another company.

25. GOVERNING LAW; DISPUTES

These Terms shall be governed by and interpreted in accordance with Norwegian law.
In case of a dispute between the parties which cannot be solved by negotiations, either party shall be entitled to have such dispute finally decided by the Norwegian courts, with Oslo District Court as venue. Nevertheless, FotoWare has the right to instigate legal proceedings in the country where you have your place of residence or perform business activities.

26. CHANGES TO THESE TERMS

FotoWare will revise these Terms from time to time, and these Terms shall at all times apply as they are available on fotoware.com/legal/terms-service.

27. QUESTIONS

Should you have any questions concerning these Terms, please contact sales@fotoware.com