TERMS AND CONDITIONS

LAST UPDATED: May 13, 2021

INTRODUCTION:

These Terms and Conditions of Service (“Terms and Conditions”) is a legal Agreement, please read it carefully. By purchasing our Points you are agreeing to these terms.

Capturely Inc. is a content creation company, which primarily produces business photography, headshot photography on scale, product photography, business video services and related content which may include photographs, graphics, video, audio recordings, and artwork (collectively referred to as “Content”).   We sell points that can be exchanged or used for our Services (“Points”).  Our Services can be found at www.capturely.com/services and are incorporated into your Points Purchase Agreement by reference.

Capturely Inc. is an Indiana Limited Liability Corporation (“Capturely,” “we,” or “us”). By buying and/or exchanging our Points for Services, whether as an individual or as a representative of an entity that is buying our Points, you’re a “Client” (or “you”) according to these Terms.

These Terms of Service, combined with our Privacy Policy govern the business relationship between you and Capturely. Should you have any questions or concerns about these terms, please feel free to contact us.

DEFINITIONS:

“Services” mean the services outlined and described at www.capturely.com/services.

“Gallery(ies)” means the selection of online images of one person or products transmitted to the Client or individual covered by this Agreement.

“Collection” means a group of Galleries based on a single location or all Galleries within a single Project.

“Change Order” means the written confirmation of requested change to a Work Order by either you or us.

“Work Order” means the written confirmation of a Client’s request to exchange or use Points.

“Event” means any single use of Points, by way of example only, one location or set-up and take down of Capturely’s equipment to effectuate the completion of the Services or one production shoot of Merchandise.

“Merchandise” means any products or other items that you send us, whether it’s the primary subject, supporting prop, or anything else.

“Website” means www.capturely.com and all of its subparts and pages.

“Points” are defined in the Points Purchase Agreement and expire twelve months from the date of Purchase.

“Points Purchase Agreement” means the fully executed agreement between you and us to purchase Points.

“Content” means the results of our work and provision of our Services.

GENERAL TERMS:

  1. Eligibility

In order to buy/exchange or use our Points, you must:

  • Be at least 18 years of age and be able to enter into legal contracts;
  • Have a fully executed “Points Purchase Agreement” between you and us;
  • Agree to these Terms Of Service, and;
  • Have fully reviewed the Services located at www.capturely.com/services and be satisfied that we can meet your needs.
  1. Updates

We may update or make changes to these Terms by posting the revised Terms of Service on our Website. The revised Terms shall take effect and remain in full force immediately upon publication to the Website.

  1. Communication

If we need to send you information about your account, your order, billing, your Merchandise, legal notices, or anything else related to your Points or the Services we provide, we will send it to the email address you provided in your Points Purchase Agreement. We may also contact you via telephone and postal mail, but are not required to do so. You should ensure any email coming from the domain “capturely.com” is added to a “whitelist” to help ensure delivery and that it is not rejected or deleted as junk or spam.

4  Delivery of Services.

Delivery of all Services is subject to dates, location and availability agreed to in advance of exchanging Points in a written Work Order.

  1. Points Redemption

You must redeem your Points within twelve months of the date of the Points Purchase Agreement.  Capturely prefers a minimum of 30 days notice, but requires a minimum of 14 days notice, for you to redeem your Points.  Points may only be used at locations within the Continental United States, unless otherwise expressly agreed to in writing by Capturely.  Capturely may, in its sole discretion, reject any request for redemption of your Points, but will make an effort to accommodate all of your requests that comply with these Terms and Conditions and the Services descriptions.

  1. Services outside Scope

If you request Capturely to perform services not listed or available at www.capturely.com/services, and Capturely agrees to provide those services, Capturely will provide the additional Points usage amount on the Work Order or any Change Order related to the services outside its normal scope.

  1. Content Satisfaction

If you nix it, we fix it! If you are not satisfied with the quality of the content provided by Capturely, Capturely will attempt to correct the issue at its sole discretion once if you have provided written notice to us within 10 days of the date we made the Content available to you for review.

  1. Independent Contractor

Capturely shall be considered an independent contractor of Client.

  1. Content Ownership, Copyright and Usage

All Content created by Capturely, or any of its employees, independent contractors, agents or affiliates, is the sole and exclusive property of Capturely.   Capturely hereby grants you an unlimited license to use any Content transmitted to you from us for its intended business use (uses specifically included herein are Client’s posting of images on its social media, advertising, brochures, presentations, internal communication and websites as needed).

The Content is provided, to the maximum extent permissible by law, “as-is” with no warranties of any kind, either express or implied, including, but not limited to warranties of merchantability or fitness for a particular purpose. We do not warrant or represent that the Content will meet your requirements or that the Content will be free of errors.

You may modify, retouch, combine, crop, annotate, or otherwise edit and create derivative works from the Content. Our Content contained within derivative works you create remain our copyrighted material and the terms and restrictions within this license also apply to those derivative works.

10. Prohibited uses

You may not use the Content in any illegal manner. You may not use the Content in any defamatory manner or use the Content to harass any person. Content may not be used for pornographic purposes. You may not use the Content in any way that violates the trademark, copyright, or other intellectual property of any other person or party.

Content may not be used as a part of, or incorporated into, any logo or trademark.

If you are ordering our services on behalf of your employer or your client then you may permit that entity to use the Content. If you permit your employer or client to use the Content, you certify that you have received authorization that they be bound to this entire Agreement. If such authorization has not been granted to you then they may not use the Content.

If we grant a license to your company or entity and that company or entity is later sold to another party, the license shall automatically transfer to the new owner.

You may not claim you are the author of the Content. In any case where the author of the Content is specified it must be attributed as “Copyright Capturely Inc.”

11. Intellectual property of third parties.

In some cases, Merchandise you direct us to photograph, or props used in conjunction with that Merchandise, may contain trademarks, logos, artwork, or copyrighted designs that become visible in the finished Content we produce for you at your direction. By directing us to photograph Merchandise containing visible intellectual property, you certify that you either own, or have received explicit permission from the owner, to use any and all trademarks, logos, artwork, or copyrighted designs, visible on all of the Merchandise you have directed us to photograph. By using the Content, you certify that the Content and your use of the Content, does not infringe on the intellectual property rights of any third party. You understand that it is your sole responsibility to obtain necessary permission to use any and all trademarks, logos, artwork, copyrighted designs, or other intellectual property visible within the Content.

If stock photography or other artworks owned by third parties are incorporated into the Content we produce for you, we certify that this content has been paid for and/or licensed by us for use in the Content in accordance with the terms of service of the respective supplier. When printing Content containing aforementioned stock photography and artwork, the maximum number of printed copies that may be produced shall not exceed 500,000 print copies. This restriction does not apply to electronic display, such as on a website.

12. Models.

We certify that we have obtained appropriate releases from any models depicted in the Content and the Content will not infringe on any moral right, privacy right, or right of publicity of any model depicted within the Content so long as the Content is used in accordance with these Terms and Conditions.

  1. Uncontemplated Items.

If we encounter a situation not covered by the Points Purchase Agreement, these Terms & Conditions and/or the Services, we will work together to solve the situation.  Capturely cannot guarantee that a solution will be found, but will make an effort to solve the problem.

ON-SITE AND PRODUCT CONTENT PRODUCTION:

  1. Pre-Production Specialist.

Once you have purchased Points you will be assigned a Production Executive who will guide you through redeeming Points for your needs.

  1. Work Orders.

Your Production Executive will assemble your work order of Services that outlines the Services for which you are using your Points (“Work Order(s)”).  By signing the Work Order and/or Change Order, you agree it correctly describes the services and Services you would like us to perform. In the case where any written or verbal communication is inconsistent with the Work Order and/or Change Order, the Work Order and/or Change Order shall govern.

  1. Change Order.

Once a Work Order is issued (fully signed by both of us), if either of us requests any modifications to the Work Order, it must be in writing and issued on a change order (“Change Order”).  Every Change Order must be agreed to and signed by both you and us.

  1. Rescheduling.

You may reschedule a Work Order or Change Order; however, if you reschedule any Work Order or Change Order within five business days of any scheduled Event, it will cost an additional 50% of the Points.

  1. Content Delivery.

After production is complete, the Content will be delivered through our image hosting service. We will email you a link and a password so you can view and download all work that we’ve completed for you. We contract with a third party vendor who manages the website and software that runs our image hosting service. While we make every effort to ensure availability, stability and security of this service, we cannot guarantee 100% uptime or that it will be secure against all attacks. You agree that we are not responsible for loss associated with the availability, security, or confidentiality of the Content delivered through our image hosting service. We recommend that you make backup copies of all Content for your records in the event of data loss. We are not obligated to store or archive the Content for you and if we do this as part of our Image Hosting Service, such storage should be considered as a convenience only.

Onsite Photo/Video Production: 

  1. Pre-Production Department.

If you are using your Points for ONSITE Services, as part of the scheduling process, our Pre-Production department will lead a virtual walk through with you to finalize your Event details with our content creator. You agree to be available for the video call and to provide an onsite Point of Contact (POC) and Secondary Onsite POC for the day of each Event.

  1. Attendee Scheduling (if applicable).

Following the Pre-Production call, Capturely will provide a scheduling URL (Link) for you to send out to your individual headshot and/or video production attendees. You may distribute the link to attendees for self-scheduling or choose to use the link internally to schedule attendees yourself.  You assume all responsibility disseminating the scheduling link and/or internally scheduling the attendees to ensure smooth event flow and timing.  If you experience issues with the scheduling link contact your Pre-Production Specialist and he/she can assist you.  If you make an error scheduling that causes our Event run longer than indicated in the Work Order and/or Change Order due to your error (intentional or not), you agree that for every hour or partial hour of overrun, you will forfeit 100 Points or if you have not purchased enough points to cover the overrun, you agree to pay for the additional Points within three days of the Event.

  1. Non-preparedness.

If we show up to complete an onsite Work Order and/or Change Order and you are not prepared or want to reschedule you forfeit the Points related to that Work Order or Change Order. It is important to us that we maintain a strong working relationship with our professionals, which means compensating them for their time anytime they have agreed to work an event with us.

  1. Content Creation Experience.

The Capturely image experience is designed to provide our Services in a fun and professional manner. Capturely team members wear appropriate attire, use clean humor, and play music to create an optimal environment. Any modifications to our image experience desired by the Client can be discussed with us and outlined in your Work Order and/or Change Order.

  1. Staging.

For your safety and ours, we are NOT RESPONSIBLE for staging your onsite Services. Staging is defined as cleaning spaces, decluttering surroundings, moving and/or adding decorations or office items and/or moving furniture.  In your Pre Production call, our team will advise you if they believe staging needs to be completed in order to ensure the quality of the content.  If a Capturely content creator, after arriving ONSITE and at his or her sole discretion, feels the Work Order cannot be completed due to Client’s failure to stage you agree that if you choose to reschedule, there will be a rescheduling fee of 50% of the Points redeemed for the rescheduled Event. In the event you choose not to reschedule and request the Event to continue, Capturely is not responsible for the quality of the content captured and will not be held responsible if the content is not consistent with the Work Order and/or Change Order.  Additionally, Capturely will not reshoot the Event or reschedule the Event without you exchanging or using additional Points.

  1. Release.

If you are an entity, or you are purchasing points to use for more than one individual person, you must have each person agree to the following content release.

“I agree to be photographed, recorded and videotaped by Capturely Inc. on behalf of my employer. I hereby irrevocably authorize Capturely Inc. and my employer and its affiliates to copyright, publish, reproduce, exhibit, transmit, broadcast, televise, digitize, display, otherwise use, and permit others to use, (a) my name, image, likeness, and voice, and (b) all photographs, recordings, videotapes, audiovisual materials, writings, statements, and quotations of or by myself (collectively, the “Materials”), in any manner, form, or format whatsoever now or hereinafter created, including on the Internet, and for any purpose, including, but not limited to, advertising or promotion of Capturely Inc. and/or my employer, its affiliates, or their services, without further consent from or payment to me. It is understood that all of the Materials, and all films, audiotapes, videotapes, reproductions, media, plates, negatives, photocopies, and electronic and digital copies of the Materials, are the sole property of Capturely Inc. I agree not to contest the rights or authority granted to Capturely Inc. I hereby forever release and discharge Capturely Inc., its employees, licensees, agents, successors, and assigns from any claims, actions, damages, liabilities, costs, or demands whatsoever arising by reason of defamation, invasion of privacy, right of publicity, copyright infringement, or any other personal or property rights from or related to any use of the Materials. I understand that Capturely Inc. and/or my employer is under no obligation to use the Materials.”

Product Photography:

  1. Shipping Costs. You are responsible for the costs of shipping your Merchandise to and from our studio, plus any necessary insurance. As a courtesy, a Capturely team member can help coordinate the return shipment for your item, however Capturely is not responsible if a shipment is lost, delayed, or damaged, while in transit to or from our studio.
  2. Prohibited items. Do not deliver to us any Merchandise that contains, any narcotic, illegal drug, or controlled substance, or any dangerous weapon, firearm, explosive, dangerous chemical, obscene or pornographic materials or any merchandise that is unlawful to possess in the State of California, the State of Indiana or the United States.
  3. Shipping of Merchandise to us. When shipping Merchandise to our studio, please follow these guidelines:

Packages should be carefully packed to ensure protection of the Merchandise during transit.

  • All packages should include your name, company name, address, email address, and phone number.
  • All packages should include the reference number for your project, which is detailed in your Work Order.
  • Shipments should be addressed to:
    • Capturely, Inc.
    • 10951 Huston Street
    • North Hollywood, CA 91601
  • Return shipping. We will not return perishable or food items, they will be thrown away.  For all other Merchandise, if you specify return shipping when placing your order, we will return your Merchandise to you after completion of the project.  You can either provide a postage/shipping pre-paid label or you must provide a physical address (sorry, no PO boxes) for return. Due to import/export regulations, all return shipments must be to an address within the USA. The cost of return shipping and handling will be quoted prior to shipment and you must pay the fee prior to shipping. You may also pick up your products at our studio location during business hours if you do not want them to be shipped. All return shipments are subject to our Limitation of Liability in section 4 (d) below.
  1. Limitation of liability for damage or loss of Merchandise. If your Merchandise becomes damaged or lost while in our possession, or during return shipment, we will, at our option, replace, repair, or reimburse you for the value of the Merchandise up to a maximum of $500 USD total lifetime aggregate. For Merchandise valued greater than $500 USD you should purchase your own insurance covering loss or damage to the Merchandise while in our possession and during transit to and from our studio. We are not liable for loss or damage to Merchandise exceeding a total value of $500 USD, regardless of quantity.
  2. Storage. Upon request, we will store your Merchandise in our facility free of charge for up to 30 days after completion of your project. After 30 days, you must arrange with us for Merchandise to be returned, picked up, donated, or discarded. If we are unable to obtain your preference, Merchandise will be subject to our Abandonment policy in section 4 (g) below.
  3. Donating or discarding. Occasionally, the value of some Merchandise may be less than the cost of return shipping. If you do not want the Merchandise returned to you at the completion of your project please let us know and we will donate or discard the Merchandise. We are not able to offer compensation or credit for donated or discarded Merchandise. If you choose to have your Merchandise donated or discarded, we will decide which persons or organizations receive the Merchandise or whether it is discarded instead of donated.
  4. Abandonment. If your Merchandise is in our possession and we aren’t able to reach you regarding its return, it will be considered abandoned after the time periods detailed below have expired. If we try to reach you to obtain return shipping information, or payment for return shipping, and 30 days pass without us receiving the necessary information or payment, we will then email you a notice informing you that your Merchandise is at risk of being donated, discarded, or sold. If another 30 days passes after we have emailed the aforementioned notice and we still have not received your return shipping information or payment for return shipping, you agree that all title, interest, and ownership of the Merchandise shall be transferred to us and the Merchandise will be donated, discarded, or sold, at our option, and you will not receive any compensation for the merchandise or proceeds from any sale.
  5. Taxes. You agree to be responsible for and pay any and all applicable sales, use, or value added taxes, or duties imposed by any jurisdiction as a result of the work performed for you by us or in connection with any license we grant to you.
  6. Production and creative process.
  • Alterations and accuracy. As part of our creative process, you agree we may make any alterations to the Content that we feel are appropriate. This includes, but is not limited to: color adjustments, brightness adjustments, dust removal, scratch removal, distortion removal, correction of defects, correction of manufacturing inconsistencies or errors, compositing of multiple images, adding graphics, and other alterations as necessary. The Content is our artistic interpretation of the Merchandise we photograph for you. We do not guarantee that the Content will be a flawless or perfectly accurate representation of your Merchandise. It’s your responsibility to ensure the Content is appropriate for the final intended use and that it doesn’t misrepresent the Merchandise. We will not be responsible for any claims by you or any third party that the Content is an inaccurate representation of the Merchandise.
  • Creative direction. As our client, you may elect to provide creative direction over any aspect of the project, such as lighting, arrangement, camera angle, and editing. If you choose to exercise this creative direction, you must provide such direction in advance so it can be properly recorded on the invoice, shot list, and/or any attachments. You must ensure this creative direction has been correctly recorded to the invoice and any attachments prior to payment. You are not required to provide direction on creative aspects of your project. Any aspects of the project for which you have not provided specific creative direction will be left up to the judgment of our production team.
  • Review period. After the Services in any particular Work Order and/or Change Order is complete you will receive an email containing a link and password to view and download the Content. We allow up to 10 days for you to provide us with feedback regarding the delivered Content. After 10 days, if we have not heard from you, we assume you are happy with your Content and your order will be closed.  If you provided us Merchandise it will be shipped back, donated, or discarded, as you have requested and as indicated on the Work Order and/or Change Order.

LEGAL LANGUAGE:

1. Website

  • Access and use of content. Unless noted otherwise, all materials on the Website including text, images, logos, icons, photographs, and any other materials written or otherwise that are part of the Website (collectively, the “Contents”) are copyrighted property owned by Capturely Inc., one of its affiliates, or by third parties who have authorized their materials for use on our Website and are protected by U.S. and international copyright laws. U.S. and international copyright laws also protect the arrangement of the Contents of this Website and the method of presentation of these materials. You may not reproduce, publish, transmit, distribute, display, modify, create derivative works from, sell or exploit in any way, in whole or part, any of the Contents, the Website, or any related materials, except that we grant you non-transferrable, non-exclusive, limited permission to access Content and display this Website on your computer or device. This permission is on the condition that you do not modify the Content on this Website, that you keep intact any copyright or trademark notices, and that you accept the terms, conditions and licenses accompanying any Content contained within this Website.
  • Website security Users are strictly prohibited from violating or attempting to violate the security of this Website, including but not limited to:
    • Unauthorized access. Accessing data not intended for a user or logging into any server or account that the user is not authorized to access.
    • Vulnerability scanning. Attempting to scan or test the vulnerability of the Website or any system or network associated with the operation of Capturely.com or Lumaticimagery.com.
    • Interference. Attempting to interfere, without limitation, with service between the Website and any user, with the secure operation of the Website, or with the stability of the Website via means of submitting a virus to the Website, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Website.
    • Spamming. Sending unsolicited email, including promotions and/or other advertising of products or services.
  • Accuracy. We make every effort to ensure the accuracy of the information contained on this Website. However, we are not liable for typographic errors, pricing errors, omissions, or mistakes that may be present in the content of the Website. If you find an error on our website please contact us so we can fix it.
  • Linked Websites. This Website contains links to third party websites. We do not accept responsibility for any such links and do not endorse or monitor them for content. We shall not be responsible for any damage or loss sustained through the use of these linked websites or their services.
  • Internet transmission problems and viruses. Due to transmission problems or technical difficulties with the Internet or this Website, it is possible for you to receive inaccurate, incomplete, or outdated copies of information from this Website. It is also possible for computer viruses or malicious software to affect this Website or be inadvertently downloaded from this Website. We shall not be responsible for any inaccurate or incomplete information delivered to you as a result of a technical or transmission problem. We are also not responsible for any damage caused by malicious software or viruses downloaded in connection with the use of this Website. We recommend you use appropriate commercially available antivirus software to help protect yourself from this type of attack.

2.  Indemnification.

You agree to indemnify and hold us and our employees, officers, and owners, harmless from any losses, including all attorney fees that may result from any claims you make that are prohibited under these Terms and Conditions due to any Limitation of Liability or other provision. You agree to indemnify, defend, and hold us harmless against any losses, including attorney fees, which result from third-party claims alleging you did something that, if true, would be a violation of any of these Terms.

3. Limited Liability.

You assume full responsibility for any loss that results from your use of our Services or Content to the maximum extent permitted by law. We and our employees, officers, and owners, are not liable for any indirect, special, punitive, or consequential damages under any circumstances, including delays, even if it’s based on negligence or if we’ve been advised of the possibility of such damages.

  1. Severability

If any of these Terms are found to be unenforceable for any reason, such provision shall be modified only to the extent necessary to make the provision enforceable and all other Terms shall remain in full force and effect. If we choose not to act on a breach of these Terms for whatever reason, it does not constitute a waiver of our rights with respect to such a breach or any subsequent breaches of these Terms.

  1. Attorney fees

In the event of litigation, the prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing this Agreement.

  1. Equitable relief

If you violate these Terms we may seek injunctive relief from the courts or other equitable relief.

  1. Assignment

You may not assign your rights under these Terms to any other party. However, we may assign our rights to any other entity or individual at our discretion.

  1. Governing law

These Terms shall be governed and construed under Indiana without effect to any Indiana laws regarding conflicts of law. Any action or proceeding arising from these Terms and Conditions, your Points Purchase Agreement and/or your use of our Services or Content must be held in the State and Federal courts in Hamilton or Marion County, Indiana.

CONTACTING US

If you have any questions about these Terms and Conditions, our Website, or any of our Services please direct these inquiries to:

Capturely Inc.

10951 Huston Ave.

North Hollywood, CA 91601

Phone: 855-252-9797

Email: [email protected]