Términos del servicio

  

 

Terms and Conditions

(for the sale of goods)

 

 

1.       Content and Conclusion

1.1     Parties and Agreement. These Terms and Conditions (hereinafter referred to as the "Terms") govern the contractual relationship between GotPhoto Inc., 433 Broadway, New York, NY 10013, United States ("GotPhoto") and its customers ("Customer") with regard to the sale of hardware, software and other products (“Goods”) in the GotPhoto shop.

1.2     Eligibility. GotPhoto does not provide its services to consumers, but exclusively for the purposes of the Customer's commercial or independent professional activity. If Customer is an individual, Customer represents and warrants that they are at least 18 years of age and are otherwise legally qualified to enter into and form contracts under applicable law. If Customer is a business entity, Customer represents and warrants that its agent agreeing to these Terms has authority to act and enter into contracts on behalf of that business entity.

1.3     Entire Agreement. The Terms constitute the entire agreement between GotPhoto and Customer concerning the sale of Goods. Customer's terms and conditions – including those on Customer’s website or mobile application - do not bind GotPhoto unless GotPhoto has expressly agreed to their validity in writing. Agreements, in particular verbal subsidiary agreements, commitments, guarantees and other assurances by GotPhoto's employees, only become binding upon written confirmation by GotPhoto.

1.4     Conclusion of Contract. The Customer can make an offer to conclude a contract by using the ordering process in the GotPhoto shop (https://gotphoto-usa.myshopify.com). To do this, the Customer must place the Goods they intend to purchase in the “Cart”. The Customer is able to access the “Cart” at any time via the corresponding button in the navigation bar and make changes to the “Cart”. After clicking the “Check Out” button and entering contact details as well as shipping and payment methods, the Customer is presented with an overview of their order and the shipping costs. If the Customer wishes to order the Goods and make a binding offer for the Goods in the cart, they must click the “Pay now” button.

          A purchase of Goods is only possible if the Customer accepts these Terms by selecting the checkbox “I have read and accept the Terms and Conditions” and thereby includes the Terms in their offer to conclude the contract.

          The Customer will receive an order confirmation by email. The contract for the purchase of Goods is only concluded when GotPhoto accepts the order. The declaration of acceptance may be sent in the same email as the order confirmation.

1.5     Retrievability of Contract Text. The text of these Terms will be provided to the Customer as a PDF-document in the order confirmation and may be stored locally. The free Adobe Acrobat Reader is required to view the PDF (http://get.adobe.com/de/reader/).

2.       Responsibilities of GotPhoto

2.1     Provision of Goods. GotPhoto will sell the Goods to the Customer in accordance with these Terms.

2.2     Customer Support. GotPhoto will provide customer support services. Support requests, as well as questions or complaints regarding the Goods, may be addressed to https://help.gotphoto.com/en/support/home .

2.2     Delivery Periods. Delivery periods and dates provided to the Customer are non-binding and not of the essence unless GotPhoto has expressly designated them as binding in writing. GotPhoto will make reasonable efforts to meet the indicated delivery dates.

2.3     Shipping of Goods. GotPhoto will ship the Goods to the shipping address provided by the Customer during the order process. Shipping costs will be clearly displayed to the Customer in the order overview before the Customer makes the binding offer to buy the Goods.

2.4     Risk of Loss. The risk of accidental loss or deterioration of the Goods passes to the Customer as soon as the Goods are handed over to the carrier or shipping agent.

2.5     Data Protection. GotPhoto and Customer acknowledge and agree that (a) the personal data shared by each party with the other party in connection with these Terms is limited to business contact information and (b) each party will act as an independent data controller in respect of such personal data. GotPhoto will, and will procure that any relevant subcontractor will, implement appropriate technical and organisational measures to protect the Customer’s personal data against unlawful processing or processing otherwise than in accordance with these Terms. GotPhoto will take commercially reasonable actions and precautions to: (i) protect Customer’s data using data encryption techniques; (ii) ensure security measures are in place to protect cloud services used by GotPhoto; and (iii) restrict access to Customer’s data on a need-to-know basis. GotPhoto will only process personal data for the purposes of complying with its obligations under these Terms or as otherwise authorized by Customer. GotPhoto will ensure that neither it nor any of its related parties will publish, disclose or divulge personal data to any third party without Customer’s written consent other than (i) to any member of the GotPhoto company group, and any of its related parties and any relevant subcontractor to whom disclosure is necessary for the performance of its obligations under these Terms; or (ii) to the extent required by any regulator or legal requirement.

2.6     Software Security. GotPhoto will take commercially reasonable actions and precautions to ensure that no disabling software is contained in, introduced into or affects the Goods or Customer’s devices as a result of the acts or omissions of GotPhoto or any of its subcontractors including by using the current releases of virus detection software in accordance with good industry practice. If disabling software is found to have been introduced into the Goods or Customer’s devices, GotPhoto will immediately notify Customer, take all necessary remedial action to eliminate the disabling software and prevent its reoccurrence and take all steps necessary and provide all assistance required to mitigate any loss of or damage to Customer’s data and/or to restore the efficiency of Customer’s data. The foregoing is Customer’s sole and exclusive remedy and GotPhoto’s sole and exclusive liability for any breach of this section 2.6.

2.7     Force Majeure and Unforeseeable Events. GotPhoto shall be released from its obligations under these Terms if and to the extent that the sale of Goods is disrupted or fails due to circumstances beyond GotPhoto’s control and for which GotPhoto is not responsible, for example a) operational disruptions of any kind, including disruptions due to a network failure at the respective internet provider, b) mobilisation, c) war, d) terrorist attack e) riot, f) strike, g) natural disasters, such as earthquakes, fire, floods, h) sabotage, i) direct and indirect consequences of pandemic or epidemic, such as quarantine, border closures or other sovereign or official interventions and measures, as well as j) any other events unforeseeable at the time of conclusion of the contract or unpreventable by GotPhoto, whether comparable to the aforementioned examples or not (“Force Majeure Event”).

As soon as GotPhoto becomes aware of such Force Majeure Event, GotPhoto shall inform the Customer thereof without undue delay in a suitable manner and shall keep Customer updated during the time a Force Majeure Event continues. The Customer undertakes to provide GotPhoto with contact details for this purpose and to keep those contact details up to date. GotPhoto shall use reasonable efforts to mitigate the impact of the Force Majeure Event. GotPhoto’s obligations under the Terms shall be suspended until such time as the Force Majeure Event and its effects have ceased to prevent GotPhoto’s performance of its contractual obligations under these Terms.

Any agreed delivery dates and periods will be automatically extended by the duration of the Force Majeure Event. Should the Force Majeure Event continue for a period longer than 30 business days, either party may terminate these Terms with immediate effect.

This Section 2.7 states GotPhoto’s sole obligations and Customer’s exclusive remedy against GotPhoto for any type of claim related to a Force Majeure Event.

3.       Voluntary Return Policy

3.1     Subject to the provisions stipulated in these Terms, the Customer may return the Goods to GotPhoto for any reason within 30 days from the date of delivery (“Return Period”).

3.2     The Customer must notify GotPhoto during the Return Period of their intention to return the Goods by sending an email to: SupportUS@gotphoto.com  

3.3     GotPhoto will provide all necessary details about the return process to the Customer, including instructions on where to ship (“Return Location”) and how to ship the Goods.

3.4     GotPhoto will only accept the return of Goods that a) are returned in their original package, b) have been properly used and c) are in good working condition. Goods showing signs of unsuitable and improper use, faulty or negligent handling, will not be accepted under this voluntary return policy.

3.5     All shipping costs must be borne by the Customer.

3.6     GotPhoto will refund to the Customer the purchase price for the Goods returned in the condition defined in section 3.4 upon receipt of such Goods at the Return Location. The reimbursement of any shipping costs, including costs for the initial shipping of Goods to the Customer, is excluded.

4.       Representations and Warranties

4.1     Representation. Each party represents that it has full capacity and authority to enter into and perform its obligations under these Terms.

4.2     GotPhoto’s Warranty. GotPhoto warrants that the Goods will (i) be free from defects in material and workmanship at the time of delivery and (ii) conform to and operate in accordance with the specifications provided by GotPhoto for a period of 12 months from the date of delivery.

4.3     Exceptions. GotPhoto’s warranty is void if a defect or non-conformity with the specifications is (i) caused by unsuitable or improper use, (ii) caused by faulty or negligent handling, or (iii) the consequence of modifications made to the Goods by the Customer or third parties without GotPhoto's consent. A warranty for defects which only insignificantly reduce the value, suitability or conformity to specifications of the Goods is excluded.

4.4     More Disclaimers. Except as expressly stated in these Terms, all warranties and conditions, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law. To the extent permitted by relevant law, GotPhoto specifically disclaims all implied warranties of functionality, performance, merchantability and fitness for a particular purpose or use, or arising from a course of dealing, course of performance or usage of trade.

5.       Liability

5.1     Liability for Defects. If the Goods have a defect at the time of delivery, GotPhoto shall, at GotPhoto’s choice, either remedy the defect or deliver a defect-free item. If the remedy in accordance with the previous sentence fails, the Customer is entitled, at its discretion, to reduce the purchase price or to withdraw from the contract. This section 5.1 states GotPhoto’s sole liability to, and the Customer’s exclusive remedy against, the other party for any type of claim described in this section 5.1.

5.2     Obligation to Inspect and Notify. The Customer shall inspect the Goods for defects immediately upon delivery and notify GotPhoto immediately if a defect is found. If the Customer fails to notify GotPhoto, the Goods are considered approved, unless the defect was not detectable during the inspection. If such a defect is discovered later, notification must be made immediately after discovery; otherwise, the Goods are also considered approved regarding this defect. To preserve the Customer's rights, timely dispatch of the notification is sufficient.

5.3     Limitation of Liability. In no event shall the aggregate liability of GotPhoto arising out of or related to these Terms exceed the total amount paid by the Customer hereunder for the Goods giving rise to the liability. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability.

          Notwithstanding anything to the contrary in these Terms, GotPhoto shall not be liable to the Customer for any indirect, consequential, special, punitive, exemplary or incidental damages of any kind, including loss of actual or anticipated profits or revenue, loss of contracts, loss of anticipated benefits or savings, loss of production or other business interruption loss, however caused,  arising out of or related to these Terms, whether such damages were foreseeable or whether the Customer has been advised of the possibility of such damages. GotPhoto will not be liable to the Customer for loss of opportunity, loss of goodwill or loss of reputation, in each case arising out of or in connection with these Terms and regardless whether such losses are direct, indirect or consequential.

5.4     Statute of Limitations. All claims by the Customer due to defects in the Goods, other breaches of GotPhoto’s obligations under these Terms or the law shall expire within 12 months after delivery of the Goods.

6.       Indemnification

6.1     Duty to Indemnify. Customer  (the "Indemnitor") agrees to defend, indemnify, and hold harmless GotPhoto and its officers, directors, employees, agents, affiliates, and representatives (collectively, the "Indemnitees") from and against any and all third party claims, actions, demands, causes of action, and other proceedings (individually, "Claim", and collectively, "Claims"), all related costs, including but not limited to legal costs and fees, arising out of or relating to: (i) Customer’s breach of these Terms, including without limitations, any obligation, representation or warranty contained herein; (ii) Customer’s access to or use of the Goods; (iii) Customer’s provision to GotPhoto or any of the Indemnitees of information or other data; (iv) Customer’s violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation. 

6.2     Requirements. As a prerequisite for the indemnification obligation pursuant to Section 6.1. “Duty to Indemnify” GotPhoto must (i) promptly inform Customer in writing of any Claims asserted by a third party, (ii) give Customer sole control over the conduct of all negotiations and litigation arising from a Claim, (iii) give Customer, at its request and expense, reasonable assistance in connection with those negotiations and such Claims. Customer shall not settle or compromise any Claim unless it unconditionally releases Indemnitees of all liabilities. Insofar as GotPhoto negligently fails to meet these requirements, the Customer's indemnification obligation shall be reduced in accordance with GotPhoto's contributory negligence.