The following definitions shall apply in these terms:
1.1 “User(s)” or “you”: natural persons, legal entities or legally responsible partnerships who access Fotor Service, with or without registration.
1.2 “Fotor Service” (or abbreviated as “Service”): service operated by Everimaging under the trademark of Fotor, available as web application at www.fotor.com (Global Website) or www.fotor.com.cn (Chinese Website) (hereinafter, collectively as “Fotor Website”), as desktop application (hereinafter, “Desktop App”) at Mac Store or at Global Website, as mobile application at Apple App Store, at Google Play or at any other app store (hereinafter, “Mobile App”).
1.3 “Content”: a collective term for any image, text, video/audio clip, music, sound, conversation that Users upload to Fotor Service.
1.4 “Published Content”: if any Content is made available and public at Fotor by Users voluntarily (e.g. by participating in any photographic competition or an event), it’s further called “Published Content” in Fotor Service.
1.5 “Work(s)”: if any Content originated by User is copyrightable, it’s further called a “Work” in Fotor Licensing Service.
1.6 “Licensed Work”: a Work of which a license is sold through the Fotor Licensing Service.
1.7 “Seller(s)”: any User that uploads a Work to Fotor and that agrees Fotor to sell their license is hereinafter referred to as a “Seller”.
1.8 “Buyer”: anyone that intends to pay for the use (a license) of a Work sold on Fotor is hereinafter referred to as a “Buyer”.
1.9 “Model Release”: a legal binding document indicating that an artist has obtained consent from the people (model) depicted in a photo or video Work. In such a document, the model(s) grant(s) the artist permission to use their portrait or likeness in a commercial context (e.g. advertisement). In industry practice, such permission is most commonly transferable to Buyers with a commercial license.
1.10 “Commercial License”: the use of the Licensed Work in connection with the operation of a business and/or any advertorial use.For the avoidance of doubt, a Commercial License does not allow any sublicensing.
1.11 “Editorial License”: the use of the Licensed Work in connection with activities that are newsworthy or of general public interest. The use shall be within the context of editorial or journalistic print and online articles, i.e. text-based publications and contributions which use the Licensed Work to explain and/or illustrate their respective content, or use the Licensed Work to disseminate information.
1.12 “Embedded Resale”: within this Agreement means incorporating the Licensed Work into the merchandise for sale or distribution (except for “print on demand”), including clothing, magnets, posters, online or paper greeting cards, mugs or T-shirts, provided the merchandise contains text or written words and the Licensed Work constitutes only part of the whole value in the merchandise. For avoidance of doubt, resale / distribution of the Licensed Work itself (e.g. as artwork on a wall) does not belong to the Embedded Resale but Sublicensing which is prohibited under any of the Fotor licenses.
2.1 In order for User to enter the Service, User needs to register for a Fotor Account (hereinafter “Fotor Account”) and provide information which include their email address, a username and a password. Users can also register with their Facebook profile.
2.2 As per local laws and regulations, User may be required to provide further information, including personal data, to perform certain service that is obliged to identify the User. When using Fotor Licensing Service, User shall provide the proof of copyright (Seller) or identification as licensee (Buyer). If User wishes to cash out, we may require User to provide additional information for purposes of income taxes or copyright verification.
2.3 The Fotor Account is to be secured with a password. User shall take all necessary steps to ensure that the password is kept confidential. User is obliged to notify Fotor (firstname.lastname@example.org) without any undue delay if there are signs of misuse of their Fotor Account by any third party.
2.4 User is not authorized to grant the use of the Fotor Account opened in his/her name to any third party. Particularly, you are not allowed to 1) share your Fotor Account with others, or 2) lending your Fotor Account to others, or 3) selling the right to use your Fotor Account (hereinafter, collectively referred to as "Unauthorized Access"). User is not authorized to grant the use of the Fotor Account opened in his/her name to assist any third party to obtain any Paid Service or any Licensed Work from Fotor (hereinafter referred to as "Contributory Copyright Infringement"). User understands that in the case of Unauthorized Access or Contributory Copyright Infringement, Fotor shall be entitled to revoke all licenses previously granted to User and to recover against such User all loss, damages, costs and charges.
2.5 Unauthorized Access may also result in infringement on intellectual property rights of a third party other than Fotor. In the event of such third-party claims against you, Fotor cannot verify from system record through the account information therefore will not provide you with any authorization certificate or any other form of assistance to hold you harmless. In this case, you shall assume all liabilities on your own.
2.6 Fotor has the right to block Users’ Fotor Account temporarily or permanently if there are reasons for Fotor to believe that Users violate these Terms, any third-party rights or any applicable law(s). In the event of permanent blocking or deletion, User is not entitled to open up a new Fotor Account or to use any other existing account.
2.7 Fotor has right to delete User’s Fotor Account and all data/Content associated with this account if User no longer accesses their account for over one year (“Inactiveness”). In the event of deletion of account due to Inactiveness, User may open a new Fotor Account in the future, without being able to recover any previous data/Content, even if the new Fotor Account is signed up using the same registration data as before.
2.8 User can delete their Fotor Account following instructions in the Help Center (help.fotor.com).
2.9 Particularly, please be noted that deletion of Fotor Account will result in deletion of data/Content associated with this account. Meanwhile, User agrees: 1) deletion of Fotor Account does NOT exempt User from any fees owed to Fotor; 2) any license that has been sold prior to the deletion of User’s Fotor Account shall be unaffected and cannot be revoked; 3) any Fotor advertising material integrating User’s Content shall be unaffected if such material is already made public, in use or in manufacturing before the deletion of User’s Fotor Account.
3.1 All Content shall comply with local laws / regulations, respect third-party rights and follow commonly accepted social norms.
3.2 By using the Fotor's Service, User agrees that all Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who has generated, transmitted, shared or posted the Content. This means that User, not Fotor, is entirely responsible for all Content at every stage. This includes editing, uploading, posting, sharing, emailing or otherwise transmitting or making available Content via any of the service provided. Fotor does not guarantee the storage of Content and is not intended as a back-up solution. User should back-up all Content that he/she considers important. Fotor is not responsible for Content that is lost or damaged.
3.3 User shall not to upload any of the following to Fotor:
· Content that is unlawful, abusive, obscene, pornographic, profane, harmful, threatening, harassing, vulgar, defamatory, libelous, invasive of another's privacy, or hateful racially or ethnically.
· Content that you do not have a right to edit, upload, post, share, email or otherwise transmit or make available according to any law, or due to contractual or fiduciary relationships. This includes inside information or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements.
· Content that could infringe copyright or other proprietary or intellectual property rights without the explicit permission of the owner and the persons (or their parents or legal guardians, where applicable) who are shown in the content, if applicable.
· Content that assists to generate or spread malicious rumors or fake news.
· Any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
· Unsolicited or unauthorized advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes", or any other similar forms of solicitation.
3.4 You acknowledge that Fotor does not pre-screen Content, but that Fotor shall have the right (but not the obligation) to refuse, remove or move any Content at its sole discretion, either permanently or temporarily, because that Content violates the codes of conduct or regulations. User agrees to evaluate and bear all risks associated with the use of any Service provided by Fotor and is responsible for any Content that he/she edited, uploaded, posted, shared, emailed or otherwise transmitted or made available via any of the Service provided, including the safety and accuracy of such Content.
3.5 BY UPLOADING WORKS TO FOTOR LICENSING SERVICE OR BY ENABLING THE OPTION OF SELLING THROUGH FOTOR THE LICENSE OF WORKS THAT ARE SUBMITTED TO FOTOR EVENT / COMPETITION, USER AGREES THAT THE WORKS UPLOADED TO FOTOR WILL BE MAKE AVAILABLE IN THE FOTOR LICENSING SERVICE AND ARE POTENTIALLY TO BE SOLD THROUGH FOTOR IN THE FUTURE. See Fotor Licensing Service terms for more details.
3.6 Fotor respects the intellectual property of others and we ask our Users to do the same.
3.6.1 YOU WARRANT TO FOTOR THAT ANY CONTENT YOU INTEND TO UPLOAD AND SHARE IN THE SERVICE SHALL BE CREATED OR ORIGINATED BY YOURSELF; ANY CONTENT THAT CONTAINS THIRD-PARTY INTELLECTUAL PROPERTY SHALL HAVE OBTAINED SUFFICIENT AUTHORIZATION AND SUCH AUTHORIZATION SHALL MAKE FOTOR ENTITLED TO SUBLICENSE THE CONTENT. Except as having obtained a license, User is not allowed to download copyright protected Content from Fotor, either by “right-clicking” or by other technical means. Copyright infringement may expose you to severe civil liabilities and even criminal penalties.
3.6.2 You shall have full ownership of the Work you upload, which means for example, the Work has not been transferred to others, exclusively licensed to others, nor entrusted to others to act as an exclusive agent for licensing of the Work. Before uploading your Work to Fotor, please make sure that there are no such restrictive terms in relation with your Work in any contract you have formerly signed. If you upload to Fotor a Work with title defects, with right restrictions or with other encumbrances, the consequences include: 1) if you have entrusted Fotor to sell the Licensed Work on behalf of you, the license already sold cannot be revoked and Buyer can still use the Licensed Work according to the license terms; 2) you shall bear the liability to the third party for breach of contract, on your own; 3) you shall bear the liability for breach of the Terms of Service to Fotor and compensate Fotor for all its loss.
3.7 Fotor will investigate notices of alleged infringement promptly and will take appropriate action as per applicable intellectual property laws with respect to any alleged or actual infringement. If you believe that your Work has been copied in a way that constitutes infringement on your copyright or other rights, please contact email@example.com and provide us with the following information:
· A description of where the Content in question is located, including details and directions that will assist our staff in locating it on a specific place on the Website or in Apps.
· A description of the copyrighted Work or other intellectual property that you claim has been infringed. Additional information or documents will be required to prove that you are the copyright owner of the Work.
· An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest. This shall be accompanied by the person’s address, telephone number, and email address.
3.8 Fotor’s Use of Content
3.8.1 REGARDLESS OF WHETHER USER GRANTS FOTOR PERMISSION TO SELL CONTENT, USER AGREES TO GRANT FOTOR THE NON-EXCLUSIVE, WORLDWIDE, ROYALTY-FREE, SUB-LICENSABLE RIGHT TO REPRODUCE AND USE THEIR PUBLISHED CONTENT FOR THE PURPOSES OF THE SERVICE. THIS INCLUDES THE RIGHT TO INTEGRATE THE PUBLISHED CONTENT ON FOTOR WEBSITE, INTO FOTOR’S DESKTOP APP AND MOBILE APP, ON FOTOR’S AND ITS AFFILIATED COMPANIES’ OTHER WEBSITES AND SOCIAL NETWORKS (COLLECTIVELY, THE “PLATFORMS”) AND ADVERTISING MATERIAL FOR PURPOSES OF FOTOR SERVICE. USER ALSO GRANTS FOTOR, ITS AFFILIATES AND AUTHORIZED PERSONS THE NON-EXCLUSIVE, WORLDWIDE, ROYALTY-FREE RIGHT TO REPRODUCE AND USE THE PUBLISHED CONTENT FOR THE PURPOSES OF SCIENTIFIC RESEARCH.
3.8.2 If User grants Fotor permission to sell his/her Licensed Work, it means that User entrusts Fotor to delegate as a licensing platform for the Licensed Work uploaded by User, and both parties agree to follow the terms of "Fotor Licensing Service" hereinafter. Permission that User grants to Fotor is worldwide, permanent, non-exclusive, sub-entrustable to Fotor’s partnered and affiliated companies (including but not limited Chengdu 9Broad Science & Technology Co. Ltd., doing business as “PxBee”, the subsidiary company of Fotor) to sell the Licensed Works.
3.8.3 Copyright Notice (General): Fotor will make commercially reasonable efforts to indicate User as the author and/or the originator of their published Content shown on the Fotor Website or in Desktop/Mobile App. User agrees to exempt Fotor from the obligation of copyright notice when the layout of design on the Platforms is restricted by factors such as screen size or aesthetic consideration (e.g. a number of thumbnails juxtaposed). If User’s Content is sold with a Commercial License, User agrees to waive the rights of copyright notice for Buyer’s use of the purchased Content.
3.8.4 In case of the removal of Content, Fotor’s rights to the respective Content shall expire in general. Particularly, User agrees: 1) removal of Content does NOT exempt User from any fees owed to Fotor; 2) any license that has been sold prior to the removal of User’s Content shall be unaffected and cannot be revoked; 3) any Fotor advertising material integrating User’s Content shall be unaffected if such material is already made public, in use or in manufacturing before the removal of User’s Content. User agrees that as per local laws and regulations, Fotor shall be able to keep forever a thumbnail and metadata associated with the Content that User has removed.
3.8.5 As far as permitted by applicable laws, rights that User has granted to Fotor, as a whole, may be inherited, transferred, or taken over by Fotor’s legal succession in a merger, acquisition, or sale of the company and/or its assets, as well as in the event of insolvency, bankruptcy or receivership.
4.1 Fotor Service
The Service and any related software, images, webpages, text, tables, layouts, electronic documents used in connection with Fotor contain proprietary content and belong to Everimaging. They are protected by applicable intellectual property laws. Except as expressly authorized by Fotor, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on Fotor Service, in part or in whole. You also agree not to monitor, copy, transmit, present or upload any part of Fotor Service. You are not allowed to create mirror service to host any part of Fotor Service or to use it in similar/competing service with Fotor. Fotor grants you a personal, non-transferable and non-exclusive right and license to use the Service on a single device, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code. You agree not to access the Service by any means other than through the interface that is provided by Fotor for use in accessing the Service. Fotor reserves all rights that are not explicitly granted to Users.
4.2 Fotor Design Templates
The elements made available at Fotor Website for User to apply in a design work include, but not limited, graphic layouts, original typographic styles, color schemes, bitmaps, vector graphics (collectively, “Design Templates”). Unless otherwise stated or indicated that they are from third-party sources, those Design Templates are copyright protected works of Fotor (“Fotor Design Templates”). Fotor grants you a personal, global, non-exclusive, non-sublicensable, non-transferable right of using Fotor Design Templates in addition with your own creative elements to make new posters or advertisements (“Final Work”). The number of prints of your Final Work is unlimited. For the avoidance of doubt, such rights do not include the use of any of the Fotor Design Templates in part or in whole, nor the use of their derivative works, for any service that are similar or competing with Fotor Service, regardless of whether such service is paid or free. You agree not to apply any of the Fotor Design Templates, in part or in whole, outside Fotor Website. Except as expressly authorized by Fotor, you agree not to redistribute or sell Fotor Design Templates, in part or in whole. Fotor reserves all rights that are not explicitly granted to Users.
5.1 Third-party Images, Videos or Music
Unless explicitly stated or indicated, sample images, sample videos and sample music (hereinafter, collectively as “Sample Works”) in Fotor Service, including other rights (fonts, trademarks, industrial designs, portraits etc.) contained in such Sample Works, are for illustrative purpose only. Fotor has obtained license from copyright owners to use these Sample Works but they are not licensed to Fotor Users, regardless of whether Fotor Users are subscribed to Paid Service. If such sample works are to be used in your Final Work, you need to otherwise seek permission from their respective copyright owner.
5.2.1 Font Family of Hifont (“Zitiguanjia”)
Font Family of Hifont (listed in Chinese characters and pronounced as “Zitiguanjia” in Fotor Service) is copyright protected work. Fotor has obtained sublicensable right from the copyright owner to embed them in Fotor Service. The sublicense only allows Fotor Users to create their Final Work using the listed fonts within Fotor Service and based on Fotor Design Templates. User is not allowed to redistribute the fonts or use these fonts outside of Fotor Service, unless separate license has been obtained by User from the copyright owner.
5.2.2 Font Family of Senty (“Xindi”)
Font Family of Senty (listed in Chinese characters and pronounced as “Xindi” in Fotor Service) is copyright protected work. Fotor has obtained sublicensable right from the copyright owner to embed them in Fotor Service. The sublicense only allows Fotor Users to create their Final Work using the listed fonts within Fotor Service and based on Fotor Design Templates. User is not allowed to redistribute the fonts or use these fonts outside of Fotor Service, unless separate license has been obtained by User from the copyright owner. Particularly, the copyright owner has put additional restriction on the types of licensee: “Fotor User” in this context refers to only a person or an individual business but excludes all forms of legal entities.
5.2.3 Font Family of Founder (“Fangzheng”)
Font Family of Founder (listed in Chinese characters and pronounced as “Fangzheng” in Fotor Service) is copyright protected work. Fotor has obtained sublicensable right from the copyright owner to embed them in Fotor Service. The sublicense only allows Fotor Users to create their Final Work using the listed fonts within Fotor Service and based on Fotor Design Templates. User is not allowed to redistribute the fonts or use these fonts outside of Fotor Service, unless separate license has been obtained by User from the copyright owner. Particularly, the copyright owner has put additional restrictions on the type of licensee as well as on the purpose of usage: 1) “Fotor User” in this context refers to a person only (excluding all forms of legal entities). 2) The usage of this Font Family is strictly limited to personal and non-commercial purpose.
5.2.4 Font Family of Reeji & Cloud Fonts (“Ruizi” & “Yunziti”)
Font Family of Reeji or Cloud Fonts (listed in Chinese characters and pronounced as “Ruizi” or “Yunziti” in Fotor Service) is copyright protected work. Fotor has obtained sublicensable right from the copyright owner to embed them in Fotor Service. The sublicense only allows Fotor Users to create their Final Work using the listed fonts within Fotor Service and based on Fotor Design Templates. User is not allowed to redistribute the fonts or use these fonts outside of Fotor Service, unless separate license has been obtained by User from the copyright owner.
5.2.5 Font Family of Zihun (“Zihun”)
Font Family of Zihun (listed in Chinese characters and pronounced as “Zihun” in Fotor Service) is copyright protected work. Fotor has obtained sublicensable right from the copyright owner to embed them in Fotor Service. The sublicense only allows Fotor Users to create their Final Work using the listed fonts within Fotor Service and based on Fotor Design Templates. User is not allowed to redistribute the fonts or use these fonts outside of Fotor Service, unless separate license has been obtained by User from the copyright owner.
5.2.6 Other Fonts
Fonts listed in the Fotor Service other than the 5 families above, are works that have either entered the public domain or been donated by their respective copyright owner, which means they are free for all. Fotor Users are allowed to use these fonts and redistribute them but shall respect the conditions set by the donors (e.g. Users cannot claim to be the copyright owner, resell fonts or infringe on other rights of copyright owners).
6.1 The use of certain Fotor Service may be subject to payment of particular fees (“Subscription Fees”) in advance. Each of the four platforms (Global Website, Chinese Website, Desktop App and Mobile App) has its specific content or functionality that requires payment of fees before User can access it. As the four platforms are designed based on different pricing models, the payment of Paid Service on one platform is NOT applicable to another. User agrees that the fees paid on one platform will only give User access to Paid Service on this platform according to its specific payment terms.
6.2 Fotor reserves the right to change its Subscription Fees at any time, upon notice to User if such change may affect User’s existing subscriptions. If User receives a discount or other promotional offer, Fotor shall have the right to automatically and without notice renew User’s subscription to such Fotor Service at the full applicable Subscription Fees at the end of the discount or promotional period.
6.3 All Subscription Fees shall be deemed to be in the currency and amount shown on each platform or app stores, except as specifically stated otherwise in writing by Fotor. To the extent permitted by law (and unless specified otherwise by Fotor in writing), all Subscription Fees are exclusive of all taxes (including value added tax, sales tax, goods and service tax, etc.), levies or duties imposed by taxing authorities (“Taxes”), and User shall be responsible for payment of all applicable Taxes relating to User’s use of Fotor Service, or to any payments or purchases made by User. If Fotor is obligated to collect or pay Taxes for the Subscription Fees payable by User, and whether or not such Taxes were added and collected from User for previous transactions, such Taxes may be added to the payment of any outstanding Subscription Fees and will be reflected in the Invoice for such transaction.
6.4 As part of registering or submitting information to receive Paid Service, Users also authorize Fotor (either directly or through its affiliates, subsidiaries or other third parties) to request and collect payment (or otherwise charge, refund or take any other billing actions) from our payment partners or User’s designated banking account, and to make any inquiries that Fotor or its affiliates may consider necessary to validate User’s designated payment account or financial information, in order to ensure prompt payment, including for the purpose of receiving updated payment details from Users’ payment, credit card or banking account provider (e.g. updated expiry date as may be provided to us by Users’ credit card company). If the Subscription Fees are paid through Mac Store, Apple App Store or any other app store for Desktop App or Mobile App, payment rules of such app stores shall apply.
6.5 User agrees that Subscription Fees paid by User are NOT REFUNDABLE AND NOT CANCELLABLE for Paid Service on Fotor Website. If Subscription Fees are paid through Mac Store, Apple App Store or any other app stores for Desktop App or Mobile App, payment/refund rules of such app stores shall apply.
6.6 Subscription Renewals
6.6.1 In order to ensure that User does not experience any interruption or loss of Service due to the lapse of any particular subscription period, Fotor Service operates with automatic renewal, on a recurring-fees basis (except where explicitly stated otherwise by Fotor in writing). Accordingly, where applicable, Fotor will attempt to automatically renew the applicable Fotor Service for a renewal period equal in time to the original subscription period for such Service, and automatically charge User the applicable Subscription Fees using the payment method User has on file with Fotor. For example, if the original subscription period for a Service is one month, each of its renewal periods (where applicable) will be for one month. Therefore, unless User cancels the applicable Paid Service, Fotor will automatically renew such Service when it comes up for renewal, and charge User the applicable recurring Subscription Fees. In the event of failure to collect the Subscription Fees owed by User, Fotor may suspend (until full payment is made) User’s Paid Service or downgrade User’s Fotor Account back to a free basis account, without further notice.
6.6.2 User may discontinue to use and request to cancel Paid Service, in accordance with the terms herein. The effective date for cancellation of Paid Service shall be at the end of such Paid Service’s subscription period. With respect to automatically-renewed subscriptions to Paid Service, such subscription will be discontinued only upon the expiration of the respective period for which User has already made payment.
6.6.3 User agrees that as the cancellation process may take a few days for the Paid Service on Fotor Website, in order to avoid the next automatic renewal and respective charge, THE CANCELLATION REQUEST SHALL BE MADE AT LEAST SEVEN (7) DAYS PRIOR TO THE EXPIRATION OF THE THEN-CURRENT SUBSCRIPTION PERIOD. If Subscription Fees are paid through Mac Store, Apple App Store or any other app stores for Desktop App or Mobile App, cancellation rules of such app stores shall apply.
6.6.4 Failure to comply with any of the Fotor Terms of Service or failure to pay any due Subscription Fees shall entitle Fotor to suspend or cancel User’s Paid Service. For the avoidance of doubt, in the event of cancellation due to breach of the Fotor Terms of Service, User’s Subscription Fees are not refundable even if User’s then-current subscription period is not expired on the day of cancellation.
6.7 Loss of Data and Content
If User’s Fotor Account or any Fotor Service is cancelled (whether at User’s request or at Fotor’s discretion), it may cause or result in the loss of user data, features, or capacity of User’s Fotor Account. Fotor shall not be liable in any way for such loss or for saving a backup.
6.8 Single-Seat License
Each Fotor subscription shall be associated with a single Fotor Account of a single person. If you are an enterprise User with multiple employees who access the Fotor Paid Service, please contact firstname.lastname@example.org for information of subscription granting you a Multi-Seat License.
6.9 Other Restrictions on Paid Service
6.9.1 Whether User purchases, receives or conditionally receives Paid Service through Fotor and/or its affiliates/partners, the Paid Service is limited to User’s own use. User shall not resell, offer or share the Paid Service with any third party. If User resells, offers or shares the Paid Service with any third party, Fotor may revoke such User's license of Paid Service, regardless of whether User has passed consideration to Fotor or has enjoyed any promotional offer from Fotor. Such User shall assume all liabilities for Unauthorized Access and Fotor reserves the right to recover against such User all loss, damages, costs and charges.
6.9.2 If User purchases or receives Paid Service through inappropriate approaches other than through Fotor or its affiliates/partners, for example, acting as a transferee, donee or sharee of the misbehaviors stated in clause 6.9.1, it shall be deemed as Unauthorized Access of the Fotor Paid Service. Fotor may immediately block such User’s Paid Service, regardless of whether User has passed consideration to anyone. Such User shall assume all liabilities for Unauthorized Access and Fotor reserves the right to recover against such User all loss, damages, costs and charges.
7.1 Fotor Chinese Website may collaborate with a few third-party partners to provide printing service to Fotor Users (for Users in mainland China only). See separate terms (available only in Chinese language) for details.
7.2 Fotor Global Website may collaborate with a few third-party partners to provide printing service to Fotor Users. Printing service on Fotor Global Website is presented to Fotor User through the SDK (Software Development Kit) of Fotor’s printing service partners. The printing service partners are all independent contractors and provide printing service to Fotor Users on their own. User agrees that by using the printing service on Fotor Global Website, User sets up a new contract relationship with the selected printing service partner. Unless the payment is collected by Fotor, User agrees that Fotor shall not be liable for any refund, quality or delivery issues related to the printing service.
8.1 Service Description
The Fotor Licensing Service gives amateur and professional artists / designers an option to sell / buy the license of Works at Fotor. Seller can enable this option by uploading their Works to the Fotor Website or Apps and granting Fotor the rights to sell their license. Buyer can pay online for one of the licenses that are provided under standard formats at Fotor Licensing Service. Once the payment has been made, Buyer can download the purchased Work and use it in compliance with respective license terms.
For the avoidance of doubt, the rights that a Seller grants to Fotor Licensing Service are worldwide and non-exclusive. Fotor reserves the right to change, interrupt or discontinue the operation of its Licensing Service at any time. Fotor will notify User of such event in advance, if possible.
By uploading Works to Fotor Licensing Service or by enabling the option of selling through Fotor the license of Works that are submitted to an event / competition, Seller agrees to have such Works published for sale on Fotor at terms and prices that Fotor applies. Seller agrees that Fotor can set different price for different Works in the same transaction and different price for the same Work in different transactions. The determination of price depends on factors such as quality of Work, transaction model, offer or conditions set by Buyer, and whether a Model Release (where applicable) is accompanied. Fotor further reserves the right to adjust any such price upwards or downwards at its sole discretion at any time, to run temporary promotional campaigns covering all or some of the Works at Fotor and to create bundles, compilations and portfolios of Works and to set the prices for such campaigns, bundles, etc.
8.3 Components of License Fee
For any purchase of a license, Buyer agrees to pay the defined price (“License Fee”) specified by Fotor. The License Fee is composed of all applicable taxes, fees (such as those charged by third-party payment partners) and Allocable Revenue. For the license of a Work sold:
[License Fee] – Taxes – Fees = [Allocable Revenue]
Upon receipt of the License Fee from Buyer, Fotor will share 40% of the Allocable Revenue to Seller each time a license of their Work is sold. The remaining 60% of the Allocable Revenue is assigned to Fotor as a service fee. Fotor reserves the right to adjust the revenue share.
8.4 Payment Terms
8.4.1 Upon Fotor's receipt of the License Fee, the Licensed Work will be released to the Buyer for use in accordance with corresponding license terms. All the Works available for licensing at Fotor are stored, reproduced and transmitted in the form of digital files. As the Licensed Works are digital goods delivered instantly to Buyer, and as Fotor has responsibility under the terms of its legally binding business partnership, ALL LICENSE FEES ARE FINAL AND NON-REFUNDABLE.
8.4.2 Fotor warrants that any purchased Licensed Work may be downloaded once within 24 hours from the moment when payment of the License Fee is successfully received. A replacement of the Licensed Work at the same price under the same license as the one purchased at Fotor will be offered only if the Licensed Work has not been downloaded due to unrecovered file corruption at the server end or the permanent removal by the copyright owner / Fotor.
8.5 Seller’s Credit & Cash-out
8.5.1 Seller’s share of the revenue will be shown in and be credited to their Fotor Account after the sale of a license has been validated. The balance in the account comprises two parts: Settled (updated at the end of a period, say, 30 days) and Expected (also referred to as Unsettled, new estimated share). The Settled balance can be cashed out while the Expected balance is held and subject to adjustment before entering into Settled for the next period.
8.5.2 The Seller’s share of the License Fee is payable upon request. To receive the cash-out, Sellers shall provide Fotor with a PayPal account. The transaction fee charged by PayPal (if any) will be automatically deducted from the amount cashed out. Fotor retains the right to provide other solutions for cash-out which in such event will be described on the Fotor Website and /or in the Fotor Apps. User agrees that Fotor does not owe User any interest or any loss resulting from currency fluctuation at the time of cash-out.
8.6 Third-party Rights Contained in the Licensed Works
8.6.1 Model Release
A Seller needs consent from participating individuals or models depicted in the Work before being able to sell the Work for commercial use (see definition of “Model Release”). Seller confirms that, by uploading any Work for licensing at Fotor, Seller has collected all Model Releases required. Upon request from Fotor, Seller undertakes to provide such written and other evidence. In addition to the Model Release document itself, Fotor requires Seller to prepare a photo of the Model(s) holding the signed Model Release.
Fotor will indicate whether a Work with a portrait is accompanied with a Model Release by placing either descriptive text aside or a graphic mark on the Work. For a Work without any indication of Model Release, it will be the Buyer’s sole responsibility to obtain or avoid such consent if the Buyer intends to use the Work in a commercial context. Otherwise, the Work with portrait is only permitted for Editorial Use (in a news-worthy context).
8.6.2 Property Release, Trademark and other Consents
Apart from the Model Releases detailed above, Buyer is responsible for obtaining, verifying and validating any other consent required for the Buyer's intended use of the Work, including but not limited to any consents required from trademark owners, building or land owners or owners of other intellectual property (such as fonts) depicted in the Work. Seller shall not be responsible for obtaining any such consent, unless otherwise agreed in writing directly between a Seller and a Buyer. For the avoidance of doubt, Fotor will not collect property releases and shall not be responsible for obtaining, verifying or validating any such consent, unless otherwise expressly agreed in writing between Fotor and a Buyer.
8.7 Copyright Notice (for Licensed Work)
8.7.1 For Commercial Licenses
By granting a Commercial License to Buyer, Seller agrees to waive all his / her rights to be identified or mentioned as artist or copyright holder of the Work. Thus, Buyer shall be free to use the Work in accordance with the license terms without mentioning the Seller. However, Buyer shall not be entitled to state or otherwise indicate that Buyer is the copyright holder of the Work, but may merely state that Buyer uses the Content under a license.
8.7.2 For Editorial Licenses
If Buyer is granted an Editorial License or if the purchased Commercial License shall fall back to an Editorial License due to insufficient authorization, there must be a copyright notice. Copyright owner and Fotor have to be indicated as the originator and source of the Work respectively, by stating the copyright owner’s Fotor username under the form of “username / Fotor”. When the Licensed Work is used in online presentations, the notice must contain an embedded link to Fotor Licensing Service.
8.8 Removal of Licensed Work
Seller’s removal of Licensed Work or the deletion of Fotor Account shall not affect the license already granted to Buyer. Any prior granted license will remain in full force and effect.
8.9 Representations and Warranties
8.9.1 What Fotor Represents and Warrants
As a platform running licensing service on behalf of copyright owners, Fotor represents and warrants that for all Licensed Works, Fotor has verified the identity of each Seller and requested a copyright commitment from Seller. The Buyer’s use of the Licensed Work in accordance with the license terms will not infringe on author’s rights.
8.9.2 What Fotor Does NOT Represent or Warrant
Other than as expressly provided in these terms or in the license terms, the Licensed Work is provided "as is" without representation, warranty or condition of any kind, either express or implied, including but not limited merchantability or fitness for a particular purpose. Fotor does not represent or warrant that the Licensed Work will meet any requirements of Buyer. The entire risk as to the quality and performance of the Licensed Work to achieve a specific result is with Buyer.
8.9.3 What Buyer Represents and Warrants
Buyer represents and warrants that the purchased Licensed Work will only be used in accordance with their respective license terms. Buyers shall take full responsibility and liability for use outside of the scope or time period specified in the license terms. Buyer also represents and warrants that requisite security means will be taken to protect the Licensed Work against being obtained by unauthorized third parties, when the Licensed Work is stored, reproduced or transmitted.
8.9.4 What Seller Represents and Warrants
Seller represents and warrants to Buyer and to Fotor that he/she is the copyright owner of their Licensed Works and holds all rights in and to the Works. Seller shall assume the entire liabilities if uploading Works that infringe on third-party copyright or if providing false information about the copyright ownership. In the case that Fotor receives third-party claims resulting from a Seller’s infringement, in addition to assuming the full liability for the third party, Seller agrees to compensate for Fotor’s damages, including not limited administrative penalties, legal fees, evidence/property custody fees, investigation fees, travel expenses and other reasonable costs. If Seller’s infringement brings Fotor into disrepute, Seller shall assume other civil liabilities as well. If Seller has entrusted any collective rights management association or any other agent of stock photos to protect copyright of their Work, Seller agrees to assist Fotor in sending notice or clarifying to such a third party that User has entrusted Fotor to license their Work.
8.10 Liabilities and Indemnification
8.10.1 Provided Licensed Works are only used in accordance with their respective license terms and Buyer is not otherwise in breach of these terms, if Fotor fails to verify the source of a Licensed Work, Fotor shall defend, indemnify and hold harmless the Buyer from all damages, liabilities and expenses, arising out of or as a result of claims by third parties relating to copyright infringement. Notwithstanding, Fotor's maximum aggregate obligation and liability to Buyer for all claims (assessed collectively) under Clause 8.10.1 shall be limited to the liability cap of Ten Thousand Yuan (RMB 10,000.00 or its equivalent in other applicable currency), or the total amount of the direct loss of Buyer, whichever the lower.
8.10.2 Provided the Licensed Works are only used in accordance with their respective license terms and Buyer is not otherwise in breach of these terms, if Fotor falsely indicates on a Licensed Work the availability of the Model Release that is actually not obtained or verified, Fotor shall defend, indemnify and hold harmless the Buyer from all damages, liabilities and expenses, arising out of or as a result of claims by third parties relating to unauthorized use of a portrait. Notwithstanding, Fotor's maximum aggregate obligation and liability to Buyer for all claims (assessed collectively) under Clause 8.10.2 shall be limited to the liability cap of Ten Thousand Yuan (RMB 10,000.00 or its equivalent in other applicable currency), or the total amount of the direct loss of Buyer, whichever the lower.
8.10.3 Buyer agrees that any use of a Licensed Work outside of the scope or time period (collectively, unauthorized use) as specified in their respective license terms entitles Fotor to charge Buyer the Overdue Payment. Both parties agree to determine the Overdue Payment as per the last license that Buyer has purchased for a Licensed Work:
(a) If the last license that Buyer has purchased for a Licensed Work is a Subscription License (monthly or annually), any use of any downloaded Licensed Work outside of the subscription period entitles Fotor to charge the Overdue Payment calculated by the formula: [Overdue Payment] = [Number of months between the date of the last subscription fee successfully paid and the date of the latest use of the Licensed Work] X [current monthly subscription price specified at Fotor website]. If Buyer’s previous subscription is an annual one, the monthly subscription price is calculated as 1/12 of the current annual subscription price.
(b) If the last license that Buyer has purchased for a Licensed Work is a One-Time License, any use of the Licensed Work outside of Buyer’s Final Work entitles Fotor to charge the Overdue Payment calculated as five (5) times the current price of the Extended Royalty Free License for the Licensed Work at its largest size.
(c) If the last license that Buyer has purchased for a Licensed Work is a Royalty Free License for a smaller size, any use of the Licensed Work at its larger size entitles Fotor to charge the Overdue Payment calculated as five (5) times the current price of the Standard Royalty Free License at its largest size.
(d) If the last license that Buyer has purchased for a Licensed Work is an Editorial License, any use of the Licensed Work in connection with the operation of a business or any advertisement (as a Commercial License) entitles Fotor to charge the Overdue Payment calculated as five (5) times the current price of the Extended Royalty Free License for the Licensed Work at its largest size.
(e) If the last license that Buyer has purchased for a Licensed Work is a License that doesn’t allow Embedded Resale, any Embedded Resale of Buyer entitles Fotor to charge the Overdue Payment calculated as 5% of the total sales of the products or service that include the Licensed Work. In case that no sales revenue can be validated, the amount shall be determined as fifty (50) times the current price of the Extended Royalty Free License for the Licensed Work at its largest size.
8.10.4 Buyer understands and agrees that any use of the Licensed Work in a manner not expressly authorized by the license terms may constitute copyright (or other types of) infringement, entitling the right holder to exercise all rights and remedies available to it under applicable laws around the world. In this case, Buyer shall be responsible for any Fotor’s damages resulting from any such infringement (including any claims by a third party), in addition and without prejudice to Fotor's other remedies under these terms and the license terms.
9.1 Fotor and/or its affiliated companies will issue an invoice or credit memo for User’s payment made to Fotor (“Invoice”).
9.2 Each Invoice will be issued in electronic form and based on the country stated in User’s billing address, and will be made available to User via User’s Fotor Account and/or by e-mail. For the purpose of issuing the Invoice, User may be required to provide additional information in order to comply with local laws. Please note that the Invoice presented in User’s Fotor Account may be inadequate with User’s local law requirements, and in such case may be used for pro-forma purposes only.
9.3 User that requests an invoice shall apply at Fotor’s website or to customer support and shall provide necessary information required by tax authorities. If the invoice request is from a legal entity registered in mainland China, the Unified Social Credit Number of such entity is required as well.
9.4 Fotor shall not be liable for any error on Invoice that results from the entry of incorrect information by User. If such error does occur, User shall contact Fotor as soon as possible, and at the latest on the last working day of the month where the incorrect Invoice has been issued. Change requests that arrive after normal working hours (between 9:00 – 18:00, GMT +8) on the last work day of the month cannot be processed at all.
10.1 Choice of Law
These Terms are governed by and construed in accordance with the laws of the People’s Republic of China, without giving effect to any conflict of law principles.
10.2 Dispute Resolution
You and the company you represent agree, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Fotor Service (collectively, “Disputes”) shall be settled by lawsuits.
You and the company you represent agree that Disputes between you and Fotor will be resolved by binding, individual lawsuit and you waive your right to participate in a class action lawsuit.
Unless you and Fotor both otherwise agree, the lawsuit shall be under the jurisdiction of a People's Court in Chengdu City, Sichuan Province, China. Fotor shall not be liable for any legal fees and/or other costs incurred prior to receiving complete notification of the claim.