This PhotoPrism® Pro License Agreement (this "Agreement") is between you (the "Customer") and PhotoPrism UG ("PhotoPrism", "we" or "us"), collectively the "Parties".
Visit photoprism.app/contact to view our full contact information as required by law. We may modify this Agreement from time to time (1) to reflect changes to our products, services, or business operations, (2) for legal or regulatory reasons, or (3) to improve readability and make clarifications that our Customers request. Changes will take effect at the next renewal of the Subscription Term and will apply automatically from the renewal date.
Last Updated: March 2, 2023
By submitting your order, you agree to be bound by this Agreement. If you do not agree to this Agreement, you may use or access the Software only in accordance with our Public License, if available. Not all features may be available under the Public License.
If you agree not as an individual, but on behalf of your company, government, or other entity for which you are acting (e.g., as an employee or government official), then "you" or "Customer" means your entity, and you bind your entity to this Agreement. You warrant that you have the legal authority to enter into this Agreement.
0. Definitions
Order Form means the order document or order page for the Software.
Initial Subscription Term means the term for the applicable Software commencing on the Subscription Start Date specified on Customer's initial Order Form and continuing for the Subscription Term specified on the Order Form.
Subscription Start Date means the Subscription Start Date specified in the applicable Order Form.
Subscription Term means the term of the Initial Subscription Term or any renewal term for the Software.
Software means the most recent version of the Software specified in the Order Form that is generally available as of the Subscription Start Date in the applicable Order Form or becomes generally available during the Term, as well as all versions (if any) expressly specified in the Order Form and all Updates of the foregoing.
Evaluation Software means versions of the Software that are not released and labeled as production-ready, such as our development previews, test builds, and any Software that is expressly provided for evaluation and not for production.
Open Source Software is any software component or software application, including third-party software, distributed under a Public License.
Update(s) means any version of the Software that PhotoPrism makes available to Customer during the term of this Agreement, including, but not limited to, modifications, patches, workarounds, bug fixes, error corrections, minor modifications or enhancements, and other major or minor releases, updates or upgrades, new versions or successor products.
Services means any backend services, world maps, hosted documentation, remote access, cloud storage, software as a service, support forums, member benefits and/or other services offered by PhotoPrism that are based on or complementary to the Software.
Professional Services are consulting, support, development, and/or other related services provided to Customer, and may also be referred to as "Consulting Services," "Customization," or "Remote Assistance."
Documentation means all instructions, diagrams, screenshots, manuals, guides, references and/or other written documents related to the Software and the Services.
Affiliate(s) means any entity that controls, is controlled by, or is under common control with a party, where "control" means the ability to direct the management and policies of an entity.
Intellectual Property Rights means all intellectual property rights, including but not limited to patents, copyrights, trademarks, goodwill, moral rights, trade secrets and all other intellectual and industrial property rights and proprietary rights, including registrations, applications, renewals and extensions of such rights worldwide.
Public License means any license that conforms to the Open Source Definition (as promulgated by the Open Source Initiative) or the Free Software Definition (as promulgated by the Free Software Foundation) or a substantially similar license, including any license approved by the Open Source Initiative or a Creative Commons license. "Open Source Licenses" include copyleft licenses.
1. License Grants and Restrictions
(a) License Grant. Subject to the terms and conditions of this Agreement and during the Subscription Term, PhotoPrism hereby grants to Customer and its Affiliates a non-exclusive, non-transferable (except as specified in Section 10b "Successors and Assigns"), non-sublicensable, worldwide license to (1) use and modify the Software and Documentation solely for Customer's internal business operations and (2) copy the Software and Documentation and any derivative works thereof as necessary to install and operate the Software copies licensed solely for Customer's internal business operations. Customer may permit contractors and Affiliates to use or operate the Software solely on Customer's behalf, provided that Customer shall bear full responsibility for any acts or omissions of its contractors or Affiliates which, if done by Customer, would constitute a breach of this Agreement. PhotoPrism will deliver the Software and Documentation by making it available via electronic download on the Subscription Start Date. PhotoPrism will keep the Software free of malicious code, such as computer worms and viruses.
(b) License Keys and Usage Restrictions. PhotoPrism will provide Customer with all necessary instructions and license keys required to access the Software and Documentation, and Customer will keep such information strictly confidential in perpetuity. Use of the Software is subject to the use restrictions set forth in the Order Form, if any. The Software may (1) report license key validation and usage restriction compliance data back to PhotoPrism ("Data"); and (2) restrict or disable features if license keys are not validated or Customer exceeds usage restrictions. Customer agrees that PhotoPrism may process Data to monitor Customer's compliance with this Agreement and improve the Software. Each party shall at all times comply with its obligations under applicable Data Protection Laws.
(c) Modifications and Evaluation Software. Notwithstanding anything to the contrary in this Agreement, PhotoPrism does not warrant, indemnify or otherwise assume any obligation or liability with respect to (1) any modifications made by Customer or on Customer's behalf to the Software or Documentation, other than Updates provided by PhotoPrism ("Customer Modifications"); or (2) Evaluation Software.
(d) License Restrictions. Except as expressly permitted in this Agreement, Customer agrees not to (and will not permit any third party to): (1) reverse engineer or otherwise attempt to discover the source code of the Software or any trade secrets contained in the Software if these have not been provided by PhotoPrism; (2) exceed the use restrictions set forth in the Order Form; (3) interfere with any license key mechanism in the Software or mechanisms in the Software intended to restrict use; (4) distribute, transfer, sublicense or otherwise make available the Software or any portion thereof to any third party, including, without limitation, making the Software available (i) through resellers or other distributors or (ii) as an application service provider, service bureau or rental source; (5) embed or integrate the Software into services or products in any manner; (6) use or transfer the Software in violation of any applicable laws, rules or regulations, including export/import laws; (7) access, use or copy any portion of the Software (including its logic and/or architecture and any trade secrets contained therein) in any way to directly or indirectly develop, promote, distribute, sell or endorse any product or service that competes with the Software; or (8) remove, obscure or alter any copyright notices or PhotoPrism's names, trademarks, hyperlinks or other designations displayed in the Software.
(e) Future Functionality. Customer agrees that payments are not conditioned on the delivery of future features, functionality, or on any oral or written public statements by PhotoPrism about future features or functionality. Customer may request that new features, improvements, or other changes be implemented in the Software. Our team will consider your requests, but is not obligated to implement such features, improvements, or other changes requested by you.
(f) Complimentary Services. Customer agrees that payments are not conditioned on the prior delivery of complimentary services, such as remote setup, onboarding, or customization. Once we have started delivering any of the complimentary services, the Subscription Start Date cannot be changed to a later date, even if Customer decides not to use the Software in production immediately.
(g) Dual Licensing. During the Term, Customer shall comply with this Agreement with respect to the Software, even if the Software is provided to the public or anyone receiving a copy under a separate license ("Public License"). Upon termination or expiration of this Agreement, any further use of the Software will be subject to the Public License, if available. Not all features may be available under the Public License.
2. Disclaimer of Warranty
THE EXPRESS WARRANTIES IN THIS AGREEMENT ARE THE EXCLUSIVE WARRANTIES OFFERED BY PHOTOPRISM, AND ALL OTHER CONDITIONS AND WARRANTIES, INCLUDING BUT NOT LIMITED TO THE CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY, AND THOSE THAT ARISE FROM STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE ARE HEREBY EXCLUDED. PHOTOPRISM DOES NOT WARRANT THAT THE SOFTWARE, SERVICES OR DOCUMENTATION WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES THAT IN ENTERING INTO THIS AGREEMENT, CUSTOMER HAS NOT RELIED ON ANY PROMISE, WARRANTY OR REPRESENTATION NOT EXPRESSLY SET FORTH HEREIN.
WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES OR FOR ANY ACTS OR OMISSIONS OF ANY THIRD-PARTY SUPPLIERS, VENDORS OR SERVICE PROVIDERS.
3. Indemnification
(a) Indemnification by PhotoPrism. PhotoPrism will indemnify, defend and hold Customer and its Affiliates, and their directors, officers, employees and agents, harmless from any loss, damage, cost, liability or expense (including reasonable attorneys' fees) (collectively, "Claims") to the extent arising from a third party's allegation that the Software or Documentation: (i) infringes any copyright, trademark or patent, or misappropriates any trade secret; or (ii) violates any law; and PhotoPrism shall bear the costs and damages finally awarded against Customer in any such proceeding that are specifically attributable to such claim, or the costs and damages agreed to in any monetary settlement of any such proceeding.
(b) Exclusion of Indemnification. Notwithstanding the foregoing, PhotoPrism shall have no obligation under this Section or otherwise with respect to any claim based on: (1) third party components (including in combination with the Software) not provided by PhotoPrism or open source components included in the Software disclosed to Customer by PhotoPrism; (2) modifications to the Software made in accordance with Customer's specifications or otherwise by a person other than PhotoPrism or a person acting at PhotoPrism's direction; (3) unauthorized use, use in violation of applicable law, or use of the Software other than in accordance with the Documentation; (4) Customer's use of the Software after termination or expiration of this Agreement; (5) Customer's use or distribution of an older update of the Software when use or distribution of a newer update would have avoided the breach and Customer has been advised of the foregoing; (6) any intellectual property rights owned or licensed by Customer; or (7) if Customer settles any claim or makes any admission with respect to any claim without PhotoPrism's prior written consent.
(c) Mitigation. If the Software becomes, or in PhotoPrism's opinion is likely to become, the subject of a Claim, PhotoPrism may, in its sole discretion and at its own expense, either (1) procure for Customer the right to continue to exercise the rights licensed to Customer in this Agreement, or (2) replace or modify the Software so that it is no longer infringing and/or lawful and remains substantially functionally equivalent. If none of the foregoing options is, in PhotoPrism's opinion, commercially reasonable, PhotoPrism may terminate this Agreement and refund to Customer a pro rata amount of the fees paid in advance.
(d) Customer Indemnity. Customer shall indemnify and hold PhotoPrism and its affiliates and their officers, directors, employees and agents harmless from any and all claims arising out of: (1) Customer's use of the Software in violation of this Agreement or any applicable law or regulation; (2) Customer's Modifications, if such claim would not have arisen but for Customer's creation or use of the Modifications; and (3) Customer's use of any third party products or services.
(e) Process. The foregoing indemnification obligations for both Parties require that the Indemnified Party: (1) promptly notifies the Indemnifying Party in writing of any Indemnified Claim; provided, however, that any delay in providing such written notice shall not limit the Indemnifying Party's obligations unless such delay results in prejudice to the Indemnifying Party; (2) cooperates fully with the Indemnifying Party, at the Indemnifying Party's expense, in the defense or settlement of any Indemnified Claim; (3) give the Indemnifying Party sole and complete control of the defense or settlement of any Indemnified Claim; provided, however, that any settlement must include a full release of the Indemnified Party, with no obligation on the Indemnified Party to take any action other than to cease use of the property that is the subject of the Claim. THIS SECTION CONSTITUTES THE ENTIRE LIABILITY OF PhotoPrism AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER FOR CLAIMS (AS PROVIDED ABOVE).
4. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY (INCLUDING ITS AFFILIATES) SHALL BE LIABLE TO ANY PARTY IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE SOFTWARE, SERVICES, DOCUMENTATION AND INTELLECTUAL PROPERTY RIGHTS PROVIDED HEREUNDER, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR (A) ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING DAMAGE TO THE COMPANY'S REPUTATION, LOSS OF GOODWILL, LOSS OF OPPORTUNITY, LOSS OF INCOME, LOSS OF PROFITS OR LOSS OF DATA), WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY AMOUNTS IN EXCESS OF THE SUM OF THE FEES ACTUALLY PAID AND THE FEES PAYABLE BY CUSTOMER TO PHOTOPRISM UNDER THIS AGREEMENT DURING THE ONE YEAR PERIOD PRIOR TO THE DATE ON WHICH SUCH LIABILITY FIRST ARISES.
IN NO EVENT WILL PHOTOPRISM BE LIABLE TO ANY THIRD PARTY VENDOR, SUPPLIER OR SERVICE PROVIDER. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, OUR MAXIMUM AGGREGATE LIABILITY FOR EVALUATION SOFTWARE IS 100 EUR.
5. Term and Termination
(a) Term. The term of this Agreement shall commence on the Subscription Start Date and continue until the earlier of (1) the expiration of the last Subscription Term or (2) the termination of this Agreement ("Term"). Unless otherwise specified in an Order Form, Subscriptions will automatically renew for the duration of the initial Subscription Term unless either party notifies the other at least 30 days prior to the expiration of the Subscription Term that it will not renew.
(b) Termination. This Agreement may be terminated by either party if (1) the other party materially breaches this Agreement and fails to cure the breach within 30 days after receipt of written notice from the non-breaching party; or (2) if at any time the other party: (i) ceases to operate without a successor; or (ii) seeks protection under any bankruptcy, receivership, trust, arrangement or similar proceeding, or if any such proceeding is commenced against such party (and is not discontinued within 60 days thereafter).
(c) Effect of Termination. Upon termination of this Agreement, and without prejudice to any other rights or remedies available to the parties, (1) all Licensed Rights and obligations under this Agreement shall immediately terminate, provided that the confidentiality obligations and any other provisions of this Agreement that must survive termination in order to fulfill their essential purpose shall survive termination; (2) Customer will promptly delete or destroy all License Keys and, upon PhotoPrism's request, confirm such destruction in writing; (3) if Customer has terminated pursuant to (b), PhotoPrism will refund to Customer all prepaid fees for use of the Software for the terminated portion of the applicable Subscription Term; and (4) if Customer has not terminated pursuant to (b), all outstanding fees for the Subscription Term will become immediately due and payable if Customer has not already paid all applicable fees.
6. Fees and Payment
(a) Fees. Customer will pay PhotoPrism the fees for the Software set forth in the Order Form, invoice or PhotoPrism's billing website, as applicable. If flexible pricing for increased usage limits is specified in the Order Form, Customer may increase its usage limits within those prices at any time. Changes to usage limits will take effect once Customer has paid the additional fees. Customer is responsible for providing PhotoPrism with complete and accurate billing and contact information and for notifying PhotoPrism of any changes. Unless otherwise expressly stated in this Agreement, all Fees are non-refundable, non-cancellable, and non-creditable.
(b) Payment. Unless otherwise specified on the Order Form, invoice or PhotoPrism's billing website, all Fees will be invoiced in advance and are due and payable in accordance with the payment terms on the Order Form, if specified, or within 30 days from the date the invoice is sent. If Customer provides PhotoPrism or one of its Payment Processors with credit card information for payment, Customer acknowledges that an invoice may not be mailed and Customer authorizes PhotoPrism to charge the credit card for the Software listed on the Order Form or on the PhotoPrism billing website for the subscription period.
If you are a consumer, final prices are inclusive of VAT or GST where required by law. Prices for commercial users and products expressly exclude (and Customer is responsible for) all applicable sales, use, excise, customs, tariffs and other taxes that may be payable by Customer.
All amounts payable are non-refundable and payable in the official currency of Germany (EUR). PhotoPrism may agree to accept US Dollar (USD) if Customer is based outside the EU and Switzerland.
(c) Purchase Orders. If Customer requires a purchase order or purchase order number, Customer (1) must provide the purchase order number at the time of purchase and (2) agrees that all terms and conditions of any Customer purchase order do not apply to this Agreement and are void.
(d) Past Due Amounts. A finance charge of 1.5% per month (or the highest rate permitted by law) will be assessed on past due amounts from the due date until paid in full. Customer is responsible for all reasonable costs (including attorneys' fees) incurred by PhotoPrism in collecting past due amounts.
7. Price Changes
Prices are subject to change and may be adjusted to account for currency fluctuations, inflation, new features and enhancements. Changes will take effect at the next renewal of the Subscription Term. We intend to avoid unexpected changes and announce price adjustments in a timely manner.
8. Proprietary Rights and Feedback
(a) Proprietary Rights. As between the Parties, PhotoPrism will retain all ownership rights in and to its Software, Services, Documentation, and all derivative works thereof, however made, and all Intellectual Property Rights incorporated into or related to the foregoing. All rights not expressly licensed by PhotoPrism under the License Agreement are reserved.
(b) Customer Feedback. PhotoPrism welcomes suggestions, enhancement requests or other feedback (collectively, "Feedback") from Customer. Customer may, in its sole discretion, provide Feedback relating to the Software, Services or Documentation.
(c) Use of Feedback. Customer hereby grants PhotoPrism a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate any Feedback relating to the Software, Services or Documentation that is provided by Customer or its contractors or Affiliates.
9. Third-Party Products
Customer may choose to use or procure other third-party products, services, and/or professional services, including plug-ins, customization, hosting, and training, in connection with PhotoPrism's Software. PhotoPrism is not responsible for any acts or omissions of third parties, including third party access to or use of your data or performance of the Software in combination with any such third-party product or service.
10. Final Provisions
(a) Independent Contractors. The parties are independent contractors in relation to each other, and nothing in this Agreement shall be construed to create an employer-employee relationship, partnership, agency relationship or joint venture between the parties.
(b) Successors and Assigns. Neither party may assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party, which consent shall not be unreasonably withheld; except that either party may assign this Agreement in its entirety without the consent of the other party to its Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. Subject to the limitations in this Section, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. Any other attempted transfer or assignment shall be null and void.
(c) Force Majeure. Each Party shall be excused from any delay or failure to perform under this Agreement, other than monetary payments, due to events or circumstances beyond its control, including, but not limited to, acts of God, earthquakes, labor disputes and strikes, civil disturbances, war, and governmental impositions. The obligations and rights of the Party so excused shall be extended on a daily basis for a period equal to the cause of the delay.
(d) Entire Agreement. This Agreement includes all applicable attachments, order forms and documentation. Taken as a whole, the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including but not limited to PhotoPrism's purchase orders, quotations or proposals. In the event of any conflict between the body of this Agreement and any Order Form, the Order Form shall prevail. This Agreement may be executed in multiple copies, each of which shall be deemed an original. The parties hereto have executed this Agreement in equal shares; therefore, no rule of contract interpretation which would cause this Agreement or any part thereof to be strictly construed against the drafter shall apply in any proceeding relating thereto. In this Agreement, "including" (and its variants) means "including without limitation" (and its variants).
(e) Records. Customer will keep and maintain complete and accurate records to verify that the Software is being used in accordance with the scope of the license in this Agreement, including any restrictions on use ("Compliance"), during the Term and for a period of one year after the year in which the Software was used by Customer. PhotoPrism may from time to time, but not more frequently than once every six months during the term of this Agreement and once within six months after termination or expiration of this Agreement, request Customer to provide any relevant records necessary to determine compliance, and Customer shall provide such records within five business days or as agreed to by the parties in writing. If PhotoPrism determines that noncompliance has occurred, PhotoPrism may invoice Customer and Customer shall promptly reimburse PhotoPrism for any underpayment.
(f) Waiver. In the event that you breach this Agreement and we do not take any action, we will still be entitled to use our rights and remedies in any other situation where you breach this Agreement.
(g) Applicable Law and Jurisdiction. This Agreement and any action related thereto shall be governed by the laws of Germany to the exclusion of IPR (International Law) and the United Nations Convention on Contracts for the International Sale of Goods (CISG). All claims, legal proceedings or litigation arising in connection with our Software, Services, or Documentation will be brought solely in the courts located in Berlin (Germany), and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.
If you are a consumer, we agree to submit to the non-exclusive jurisdiction of the courts in Berlin (Germany), which means that you may bring an action to enforce your consumer protection rights in connection with this Agreement in Germany or in the EU country in which you live. The European Commission provides an online dispute resolution platform that you can access at https://ec.europa.eu/consumers/odr/. We prefer to resolve any issues in direct contact with you and therefore do not participate in alternative consumer dispute resolution procedures. If you wish to bring a matter to our attention, please contact us.
If you are a federal, state, or local government agency in the United States using our Software, Services, or Documentation in your official capacity and are legally unable to accept the above applicable law, jurisdiction or venue clauses, then these clauses do not apply to you. For such U.S. federal entities, this Agreement and all related actions will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted by federal law, the laws of the State of Delaware (excluding choice of law).
(h) Severability. If a provision of this Agreement is or becomes legally invalid or if there is any gap that needs to be filled, the validity of the remainder of this Agreement shall not be affected thereby. Invalid provisions shall be replaced by common consent with such provisions which come as close as possible to the intended result of the invalid provision. In the event of gaps, such provisions shall come into force by common consent which comes as close as possible to the intended result of the agreement, should the matter have been considered in advance. Any changes of or amendments to this Agreement must be in writing to become effective.
