Enterprise Services Agreement
These Terms only apply if Customer has signed an Enterprise Order Form with Photoroom.
Service
Access and Use. During the Service Term and subject to the terms of this Services Agreement, Customer may as expressly indicated in the Order Form:
(a) access and use the AI Services, and copy and use the API and Documentation only as needed to allow Customer Users to access and use the AI Products, in each case, for Customer’s internal business purposes. To this end, Photoroom grants Customer a worldwide, limited, non-exclusive, non-assignable, non-transferable, revocable license to use the AI Services and Documentation to allow Customer Users to use the AI Products within Customer Application ; and/or
(b) access and use the AI Services, and copy and use the API and Documentation only as needed to allow Customer to develop integrations whereby End Client Users can interface with and use the AI Products within Customer Application on a so-called “white label” basis (i.e., the user interface will be Customer branded, not Photoroom branded). To this end, Photoroom grants Customer a worldwide, limited, non-exclusive, non-assignable, non-transferable, revocable license to use the AI Services and Documentation to allow End Client Users to use the AI Products within Customer Application. Customer may only use the AI Services as expressly permitted in this Services Agreement and/or in the Documentation. Each Order Form will become a part of and be governed by the terms of this Services Agreement. Any conflict between the terms of this Agreement and an Order Form will be resolved in favor of the Order Form if the Order Form explicitly states that it is intended to modify the conflicting terms of this Services Agreement.
Support. During the Service Term, Photoroom will provide Support Services to Customer as described in the Order Form.
User Accounts. Customer is responsible for all actions on Users’ accounts and for all Users’ compliance with this Agreement. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Photoroom if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised, and more generally if it becomes aware of any breach of this Services Agreement by any User.
Customer Content. Customer is responsible for (i) the Input submitted to the AI Services, in particular with respect to its compliance with Applicable Laws, (ii) providing notices and obtaining consents where applicable as from Users for the collection, use, processing and transfer of Inputs in connection with the Services, and (iii) use, processing, transfer, disclosure and modification of the Outputs. Customer acknowledges and agrees that due to the nature of artificial intelligence and machine learning, information generated by these features, including but not limited to the AI Products, may be incorrect or inaccurate. Accordingly, Customer shall review any Output before using it.
Business purposes. The AI Services are specifically designed for professional and business use. The AI Services are not intended for personal, consumer, or non-professional use. By accessing or using the AI Services, Customer represents and warrants that any individual using the AI Services is acting on behalf of a business, organization, or professional entity.
AI Services terms. This Section is only applicable if the Order Form includes the license referred in Section 1.1 (b). Customer, on behalf of itself, End Clients and Users, acknowledges that use of the API and AI Products are both subject to this Agreement. Customer hereby acknowledges that this Agreement will be applicable to End Clients and Users through Customer Application terms of use and Customer, to the extent Customer itself use the AI Products. Consequently, Customer will require Users to agree to a substantially similar set of terms with Customer, subject to compliance with Applicable Laws, with respect to the use of the AI Services, and a corresponding privacy policy, before accessing the AI Products within Customer Application. Customer shall provide Photoroom with written evidence of compliance with this Section upon reasonable request of Photoroom. Photoroom may modify Section 2 of the Services Agreement from time to time and shall notify Customer of any new version of Section 2 within a reasonable delay before its entry into force. If Photoroom modifies Section 2 in a manner that materially and adversely impacts Customer, Customer shall provide Photoroom written notice of such material adverse impact, and if Photoroom does not resolve such material adverse impact within thirty (30) days of receipt of such written notice, Customer shall have the right to terminate the Agreement immediately and obtain a refund prorata of any prepaid Fees that have not accrued prior to the effective date of such termination.
Beneficiary of the Services. Customer hereby acknowledges and agrees that Photoroom shall only provide the Services to Customer and shall neither provide nor be obliged to provide the Services to End Clients. Customer is responsible for handling End Client and End Client Users complaints, claims, questions and for managing any applicable use limits of the AI Services within its End Clients.
Responsibility for Users and End Clients. Customer shall ensure that End Clients and Users comply with the terms of this Agreement and any act, omission, breach, or negligence committed by an End Client or User will be deemed an act, omission, breach or negligence of Customer for all purposes under this Agreement, and Customer shall be jointly and severally liable for any such act, omission, breach, or negligence committed by an End Client or User.
2. Restrictions & Obligations
Restrictions on the use of AI Services.
(a) Except as expressly permitted by this Agreement, Customer will not directly or indirectly (and will not allow anyone else, including Users, to): (i) reverse engineer, decompile, or attempt to discover any source code or underlying ideas or algorithms of the API and/or AI Products (except to the extent Applicable Laws prohibit this restriction); (ii) provide, sell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the AI Services except as authorized under the Agreement; (iii) copy, modify, or create derivative works of the AI Services; (iv) introduce into the AI Services any viruses, trojan horses, worms, logic bombs or other materials that may damage, detrimentally interfere with, intercept or expropriate Photoroom’s systems and data (v) conduct security or vulnerability tests on, interfere with the operation of, cause performance degradation of, or circumvent access or content restrictions of the AI Services; (vi) access accounts, information, data, or portions of the AI Services to which Customer does not have explicit authorization; (vii) use the AI Services and/or Output to develop a competing service or product with any of Photoroom’s products and services; (viii) use the AI Services with any High Risk Activities or with any activity prohibited by Applicable Laws, in a manner not authorized by the Agreement and the Documentation, or in violation of Section 2.1 (b); (ix) use the AI Services to obtain unauthorized access to and/or disrupt anyone else’s including Photoroom’s networks or equipment; (x) use any automated system, including without limitation “robots,” “spiders,” “offline readers,” or any other authorized third party software etc., to access the AI Services in a manner that sends more request messages to the servers hosting the AI Services than the maximum amount of requests per minute set by Photoroom, notably in order to modify the AI Services or collect personal data; (xi) use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the AI Services except as required under the Agreement; (xii) take any action that imposes, or may impose at Photoroom’s sole discretion an unreasonable or disproportionately large load on Photoroom’s infrastructure or otherwise access or use the AI Services in any manner that could disable, overburden, damage, disrupt or impair the AI Services or interfere with any other party’s access to or use of the AI Services or use any device, software or routine that causes the same; (xiii) use any content (including any Output, caption information, keywords or other metadata associated with Customer Content) for any machine learning and/or artificial intelligence training or development purposes, or for any technologies designed or intended for the identification of natural persons or (xiv) upload, submit, or otherwise make available to the AI Services any Customer Content to which Customer and/or Users do not have the proper rights.
(b) Customer shall not directly or indirectly (and will not allow anyone else, including Users, to) submit to the AI Services any Input and/or use any Output that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that is reasonably deemed to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, pornographic, child sexual abuse material, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content for which User does not have a right to make available under Applicable Laws or under contractual or fiduciary relationships; (viii) contains any information or content that User knows is not correct and current; or (ix) to the extent applicable, violates any school or other applicable policy, including those related to cheating or ethics. Customer shall not directly or indirectly (and will not allow anyone else, including Users, to) create, use or distribute Output in a fraudulent or misleading way, including, for instance, by representing that the Output is entirely human generated or that the Output depicts an actual photograph of a real event. Customer shall not directly or indirectly (and will not allow anyone else, including Users, to) use the Services for bullying, disruptive or for any of the prohibited purposes under this Section or for political campaigning or lobbying purposes or otherwise use the Services in a manner that is fraudulent, inciting, organizing, promoting or facilitating violence or criminal or harmful activities.
(c) No further making available of AI Services by End Clients. As part of this Agreement, Customer shall not be authorized to make available directly or indirectly, for a fee or not, the API to End Clients so as to enable End Clients to make available the AI Services to further clients, and shall not distribute, publish, facilitate, enable or allow access or linking to the API and/or AI Products from any location or source other than through Customer Application as expressly authorized by this Agreement. The previous prohibition is only applicable if the Order Form includes the license referred in Section 1.1 (b).
(d) No further making available of AI Services by Customers. As part of this Agreement, Customer shall not be authorized to make available directly or indirectly, for a fee or not, the AI Services to further clients other than Users acting on behalf and for the benefit of Customer. This prohibition is only applicable if the Order Form only includes the license referred in Section 1.1 (a).
Suspension. If Customer (a) breaches Section 2.1; or (b) uses the AI Services in violation of the Agreement or in a way that materially and negatively impacts the AI Services or others, then Photoroom may immediately and temporarily suspend Customer’s access to the AI Services with or without notice, without prejudice of Photoroom’s right to terminate the Agreement for material breach in accordance with Section 6.2. Photoroom will try to inform Customer before suspending Customer’s account when practical. Photoroom will reinstate Customer’s access to the Product only if Customer resolves the underlying issue.
3. Proprietary Rights
Customer Application. As between Photoroom and Customer, Customer retains all rights, title, and interest, including Intellectual Property Rights, embodied in or pertaining to Customer Application, excluding any Intellectual Property Rights owned by Photoroom.
Customer Content. As between the Parties, Customer shall own all right, title and interest, including Intellectual Property in and to Customer Content. As such, Customer owns its Inputs and owns the Outputs based solely on those Inputs. For the avoidance of doubt, Outputs do not include any components of the API and/or AI Products, such as its weights or parameters. If required by Applicable Laws, Photoroom hereby assigns to Customer all its right, including Intellectual Property Rights, title, and interest, if any, in and to Outputs for the consideration of the Fees, for the whole world and the duration of protection of the Intellectual Property Rights assigned, covering all use, medium and rights such as the right of reproduction, making available or adaptation, subject to any restrictions set forth herein. Notwithstanding the foregoing, Customer acknowledges and agrees that the Outputs generated by AI Products may be similar or identical to Outputs generated for other users and customers of the AI Services. Accordingly, Photoroom does not guarantee the uniqueness of any Output and Customer is solely responsible for independently verifying and ensuring the appropriateness of any Outputs for their intended use.
API and AI Products. As between Photoroom and Customer, Photoroom shall own and retain all right, title and interest in and to (a) the AI Services including but not limited to all or part of the API, AI Products and Documentation, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services or support, and (c) all Intellectual Property Rights related to any of the foregoing. Customer shall not take any action inconsistent with Photoroom’s ownership of the API, AI Products and Documentation.
Feedback. Customer may, but is not required to, give Photoroom Feedback, in which case Customer gives Feedback “AS IS”. Customer acknowledges and expressly agrees that any contribution of Feedback does not and will not give or grant Customer any right, title or interest in the AI Services or in any such Feedback. All Feedback becomes the sole and exclusive property of Photoroom, and Photoroom may use, transfer, sub-license and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to Customer and without retention by Customer of any proprietary or other right or claim, for the whole world and for the greater of the duration of the legal protection of any Intellectual Property Rights contained in the Feedback, or seventy (70) years.
Usage data. Photoroom may collect and analyze Usage Data, and Photoroom may freely use Usage Data to maintain, develop, improve, enhance, and operate the AI Services and/or any other Photoroom products and services without restriction or obligation such as for the purpose of (i) performing statistical and data analytics to improve and optimize Photoroom’s services, including the API and AI Products, and (ii) generating aggregated, de-identified insights and metrics that do not identify Customer, End Clients or Users, or to disclose such data solely in aggregate or other de-identified form in connection with its business. However, Photoroom may only disclose Usage Data to others if the Usage Data is aggregated and does not identify Customer, End Clients or Users. Where Usage Data contain Intellectual Property Rights, the authorization of this Section is given for the whole world, is transferable and sublicensable to Photoroom’s Affiliates, for the duration of the legal protection of said Intellectual Property Rights and for the purposes described in this Section.
Machine Learning. Only subject to Customer’s express consent, Usage Data and Customer Content may be used to develop, train, or enhance artificial intelligence or machine learning models that are part of Photoroom's products and services, including third-party components of the AI Services. Photoroom will use commercially reasonable efforts consistent with industry standard technology to de-identify Usage Data before such use. Nothing in this Section will reduce or limit Photoroom's obligations regarding Personal Data that may be contained in Usage Data under Applicable Data Protection Laws.
4. Privacy & Security
Personal Data. To the extent that Usage Data includes Personal Data governed by GDPR, the parties shall comply with their obligations as set out in Photoroom's Data Processing Agreement.
Prohibited Data. Customer will not (and will not allow anyone else to, including End Clients and Users) submit Prohibited Data to the AI Services unless expressly authorized in writing by Photoroom.
Information of Users. Customer shall provide Users and comply with a publicly available privacy policy, covering the processing of Personal Data contemplated by this Agreement, and shall not disclose or make available to Photoroom any personal data without the rights and consents required by Applicable Data Protection Laws. For the avoidance of doubt, each party shall have the right to use all User Personal Data received in connection with this Agreement in any manner consistent with such party’s privacy policy, the Agreement, and Applicable Data Protection Laws, and Photoroom has the right to use in any manner all User Personal Data received by Photoroom via the AI Services, subject to Sections 3.5 and 3.6, and Applicable Data Protection Laws.
Security. Photoroom shall implement and maintain appropriate security measures in order to restrict access to Usage Data to solely Photoroom’s personnel that is performing the Services and protect Usage Data. As applicable, Photoroom may modify the security measures from time to time only if such modification provides at least the same level of security, and shall notify Customer of any new version thereof within a reasonable delay before its entry into force.
Photoroom processing as controller. Photoroom’s processing of Users’ personal data with respect to the Services are described in Photoroom’s privacy policy available at the following address (and any succeeding link): https://www.photoroom.com/legal/privacy.
5. Payment & Taxes
Fees. Fees for the Services are set forth in the Order Form. Unless specified otherwise in the Order Form, Customer will pay correct and undisputed invoices within 30 days from issuance of such invoice. Except for the prorated refund of prepaid Fees allowed with specific termination rights given in the Agreement, Fees are non-refundable.
Fees schedule. Customer shall pay the Fees in accordance with the payment schedule set forth in the Order Form.
Fees modification. Unless specified otherwise in the Order Form, Photoroom reserves the right to modify the Fees at any time. Any such modification will be communicated to Customer at least sixty (60) days before the Service End Date, and shall be applicable on the first day of the next Additional Subscription Period. If Customer does not agree with the revised Fees, Customer may terminate the Agreement by providing written notice by opposing the renewal of the Agreement in accordance with the Order Form. If Customer does not oppose the renewal of the Agreement, the revised Fees shall be deemed tacitly accepted, and the Agreement will continue under the new Fees structure.
Taxes. Customer is responsible for all duties, taxes, and levies that apply to Fees, including sales, use, VAT, GST, or withholding, that Photoroom itemizes and includes in an invoice. However, Customer is not responsible for Photoroom’s income taxes.
Payment Dispute. If Customer has a good-faith disagreement about the Fees charged or invoiced, Customer must notify Photoroom about the dispute before payment is due, and must pay all undisputed amounts on time. The parties will work together to resolve the dispute within 15 days. If no resolution is agreed, each party may pursue any remedies available under the Agreement or Applicable Laws. If Customer does not raise a dispute within the aforementioned time period, the invoice shall be deemed tacitly accepted by Customer.
Late payment. If Customer fails to pay the Fees when due in accordance with this Section 5, Photoroom reserves the right to suspend the provision of the Services after providing Customer with a seven (7) days’ prior written notice of non-payment. Suspension of the Services does not relieve Customer of its obligation to pay all outstanding amounts. Without prejudice of Photoroom’s right to suspend the Services in accordance with this Section, and to terminate the Agreement for material breach in accordance with Section 6.2, in the event of late payment, Customer shall pay to Photoroom an interest on the overdue amount accrued at the rate of ten (10) percentage points above the European Central Bank’s reference rate, from the due date until full payment is made, and recovery costs which may not be lower than (40) euros. This late payment compensation and interest are due automatically without the need for a formal reminder.
Minimum commitment. The Order Form shall indicate whether Customer is bound by a minimum commitment. Photoroom shall reimburse the pro rata of minimum fees in case of early termination of the Agreement through no fault of Customer including but not limited to termination for Photoroom’s material breach, but excluding any non-renewal of the Agreement by any party.
6. Term & Termination
Order Form and Agreement. The duration of each Order Form is set out in the relevant Order Form.
Termination. Either party may terminate all or part of the Agreement immediately:
(a) if the other party fails to cure a material breach of the Agreement following 30 day’s notice;
(b) upon notice if the other party (i) materially breaches the Agreement in a manner that cannot be cured; (ii) dissolves or stops conducting business without a successor; (iii) makes an assignment for the benefit of creditors; or (iv) becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than 60 days, and in accordance with Applicable Laws.
Force Majeure. Either party may terminate the Agreement upon notice if a Force Majeure Event prevents the AI Services from materially operating for 30 or more consecutive days. Photoroom will pay to Customer a prorated refund of any prepaid Fees for the remainder of the Subscription Period. A Force Majeure Event does not excuse Customer's obligation to pay Fees accrued prior to termination.
Effect of Termination. Upon any expiration or termination of the Agreement:
(a) Customer will no longer have any right to use the Services and Customer will stop making available the AI Services to End Clients;
(b) upon Customer’s request, Photoroom will delete Customer Content within 60 days;
(c) each Recipient will return or destroy Discloser’s Confidential Information in its possession or control (to the exclusion of any Usage Data used in accordance with Sections 3.5 and 3.6); and
(d) Photoroom will submit a final bill or invoice for all outstanding Fees accrued before termination and Customer will pay the invoice according to Section 5 (Payment & Taxes).
7. Representations & Warranties
Mutual. Each party represents and warrants to the other that: (a) it has the legal power and authority to enter into this Agreement; (b) it is duly organized, validly existing, and in good standing under the Applicable Laws of the jurisdiction of its origin; (c) it will comply with all Applicable Laws in performing its obligations or exercising its rights in this Agreement; and (d) it will comply with the Additional Warranties set out in in Sections 7.2 and 7.3.
From Customer. Customer represents and warrants that it, End Clients, all Users, and anyone submitting Customer Content and using the AI Services (i) each have and will continue to have all rights necessary to submit or make available Customer Content to the AI Services; and (ii) will comply with Section 2.1. Customer represents and warrants that End Clients and Users shall not make claims, open proceedings, raise disputes against Photoroom with respect to the provision of the AI Services.
From Photoroom. Photoroom represents and warrants to Customer that during the Service Term:
(a) it will not materially reduce the general functionality of the AI Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Photoroom or by a third-party, or because of other causes beyond Photoroom’s reasonable control, but Photoroom shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
(b) when used in accordance with this Agreement, the API and AI Products shall conform in all material respects, in particular regarding requirements, characteristics, features, and other descriptions, with the Documentation provided to Customer or otherwise made publicly available.
(c) it takes industry standard steps to help ensure when used in accordance with this Agreement, the API and AI Products include no program containing malicious or detrimental hidden files, any virus, malware or any other malicious computer program, “Trojan horse,” worm or other similar harmful or malicious code.
Photoroom Warranty Remedy. If Photoroom breaches the warranty in Section 7.3 (Representations & Warranties from Photoroom), Customer must give Photoroom notice (with enough detail for Photoroom to understand or replicate the issue) within 45 days of discovering the issue. Within 45 days of receiving sufficient details of the warranty issue, Photoroom will attempt to restore the general functionality of the AI Services, including but not limited to remedies set forth in Section 9.4. If Photoroom cannot resolve the issue, Customer may terminate the affected Order Form and Photoroom will pay to Customer a prorated refund of prepaid Fees for the remainder of the Subscription Period. Without prejudice of Photoroom’s indemnification obligations, Photoroom’s restoration obligation and Customer’s termination right are Customer’s only remedies if Photoroom does not meet the warranty.
Disclaimer of Warranties. Photoroom makes no guarantees that the Product will always be error-free, or that it will function without disruptions, delays, or imperfections. The warranties in Section 7 (Representations & Warranties) and in the Order Form do not apply to any use or modification of the AI Services in breach of the Agreement, nor to any product or service provided by anyone other than Photoroom. Except for the warranties in Section 7 (Representations & Warranties) and in the Order Form, if any, Photoroom and Customer each disclaim all other warranties and conditions, whether express or implied, including the implied warranties and conditions of merchantability, fitness for a particular purpose, title, and non-infringement. These disclaimers apply to the maximum extent permitted by Applicable Laws.
8. Limitation of Liability
Liability Caps.
(a) Except as provided in Section 8.4 (Exceptions), Photoroom’s total cumulative liability for all claims arising out of or relating to this Agreement and for the overall duration of the Agreement shall not be more than the General Cap Amount.
(b) If there are Increased Claims, Photoroom’s total cumulative liability for all Increased Claims arising out of or relating to this Agreement will not be more than the Increased Cap Amount.
Damages Waiver. Except as provided in Section 8.4 (Exceptions), under no circumstances will either party be liable to the other for lost profits or revenues (whether direct or indirect), or for consequential, special, indirect, exemplary, punitive, or incidental damages relating to this Agreement, even if the party is informed of the possibility of this type of damage in advance.
Applicability. The limitations and waivers contained in Sections 8.1 (Liability Caps) and 8.2 (Damages Waiver) apply to all liability, whether in tort (including negligence), contract, breach of statutory duty, or otherwise.
Exceptions. The liability cap in Section 8.1(a) does not apply to any Increased Claims. Section 8.1 (Liability Caps) does not apply to any Unlimited Claims. Section 8.2 (Damages Waiver) does not apply to any Increased Claims or a breach of Section 12 (Confidentiality). Nothing in this Agreement will limit, exclude, or restrict a party's liability to the extent prohibited by Applicable Laws.
9. Indemnification
Protection by Photoroom. Photoroom will indemnify, defend, and hold harmless Customer from and against all Photoroom Covered Claims made by someone other than Customer, Customer’s Affiliates, End Clients or Users, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from the Photoroom Covered Claims. With respect to Outputs infringing third party’s Intellectual Property Rights, the following exceptions shall apply, and the indemnification shall not apply in the following cases: (a) the Output is caused by Input that infringes or directly causes the infringement of a third party’s Intellectual Property Rights, (b) continued use of Output even after Photoroom or Customer’s instruction to discontinue use of such Output, (c) use of the AI Services or Customer Application in any way to intentionally create infringing content or Output, (d) the combination of the Output with User’s material, a modification of the Output by a User, or the use of the Output by a User in a specific context (e.g., the use of a trademark in an infringing manner as opposed to the use of a trademark under normative fair use), where the claim would not have arisen without such combination, modification or context, (e) a User’s use of the AI Services in violation of the Agreement or Applicable Laws, (f) Customer or the relevant User disabled, ignored, or did not use the relevant filtering, safety features or restrictions provided by the Photoroom if any, (g) Customer or the relevant Users did not have the right to use the Input to generate the allegedly infringing Output, (h) the claim alleges violation of trademarks, service marks, trade names, logos or other source identifiers owned by a party or related rights and based on Customer or the relevant Users’ use of Output in trade or commerce, (i) the allegedly infringing Output is from content from a third party offering, or (j) a User’s use of Customer Application in violation of Customer’s terms of service, privacy policy or other agreement entered into between Customer and such User.
Protection by Customer. Customer will indemnify, defend, and hold harmless Photoroom from and against all Customer Covered Claims made by someone other than Photoroom or its Affiliates, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from Customer Covered Claims.
Procedure. The Indemnifying Party’s obligations in this section are contingent upon the Protected Party: (a) promptly notifying the Indemnifying Party of each Covered Claim for which it seeks protection; (b) providing reasonable assistance to the Indemnifying Party at the Indemnifying Party’s expense; and (c) giving the Indemnifying Party sole control over the defense and settlement of each Covered Claim. A Protected Party may participate in a Covered Claim for which it seeks protection with its own attorneys only at its own expense. The Indemnifying Party may not agree to any settlement of a Covered Claim that contains an admission of fault or otherwise materially and adversely impacts the Protected Party without the prior written consent of the Protected Party.
Changes to Product. If required by settlement or court order, or if deemed reasonably necessary in response to a Photoroom Covered Claim, Photoroom may: (a) obtain the right for Customer to continue using the AI Services; (b) replace or modify the affected component of the AI Services without materially reducing the general functionality of the AI Services; or (c) if neither (a) nor (b) are reasonable, terminate the affected Order Form and issue a pro-rated refund of prepaid Fees for the affected AI Services and for the remainder of the Subscription Period.
Exclusions.
(a) Photoroom’s obligations as an Indemnifying Party will not apply to Photoroom Covered Claims that result from (i) modifications to the AI Services that were not authorized by Photoroom or that were made in compliance with Customer’s instructions; (ii) unauthorized use of the AI Services, including use in violation of this Agreement; (iii) use of the AI Services in combination with items not provided by Photoroom; or (iv) use of an old version of the AI Services where a newer release would have avoided the Photoroom Covered Claim.
(b) Customer’s obligations as an Indemnifying Party will not apply to Customer Covered Claims that result from the unauthorized use of Customer Content, including use in violation of this Agreement.
Exclusive Remedy. This Section 9 (Indemnification), together with any termination rights, describes each Protected Party’s exclusive remedy and each Indemnifying Party’s entire liability for a Covered Claim.
10. Confidentiality
Non-Use and Non-Disclosure. Except as otherwise authorized in the Agreement or as needed to fulfill its obligations or exercise its rights under this Agreement, Recipient will not (a) use Discloser’s Confidential Information; nor (b) disclose Discloser’s Confidential Information to anyone else. In addition, Recipient will protect Discloser’s Confidential Information using at least the same protections Recipient uses for its own similar information but no less than a reasonable standard of care.
Exclusions. Confidential Information does not include information that (a) Recipient knew without any obligation of confidentiality before disclosure by Discloser; (b) is or becomes publicly known and generally available through no fault of Recipient; (c) Recipient receives under no obligation of confidentiality from someone else who is authorized to make the disclosure; or (d) Recipient independently developed without use of or reference to Discloser’s Confidential Information.
Required Disclosures. Recipient may disclose Discloser’s Confidential Information to the extent required by Applicable Laws if, unless prohibited by Applicable Laws, Recipient provides Discloser reasonable advance notice of the required disclosure and reasonably cooperates, at Discloser’s expense, with Discloser’s efforts to obtain confidential treatment for the Confidential Information.
Permitted Disclosures. Recipient may disclose Discloser’s Confidential Information to Users, employees, advisors, contractors, and representatives who each have a need to know the Confidential Information, but only if the person or entity is bound by confidentiality obligations at least as protective as those in this Section 10 (Confidentiality) and Recipient remains responsible for everyone’s compliance with the terms of this Section 10 (Confidentiality).
11. Reservation of Rights
Except for the limited license granted in Section 1.1 (Access and Use), Photoroom retains all right, title, and interest, including Intellectual Property Rights in and to the Services, including but not limited to the API and AI Products, whether developed before or after the Effective Date. Except for the limited rights in Section 3.1 (Customer Application) and Section 3.2 (Customer Content), Customer retains all right, title, and interest including Intellectual Property Rights in and to Customer Content and Customer Application.
12. Export regulations
Customer obligations. Customer acknowledges and expressly agrees that the Services provided by Photoroom may be subject to applicable export control and sanctions laws and regulations, including but not limited to those imposed by the European Union, the United States, the UK, France and other jurisdictions. By accessing or using the Services, Customer represents and warrant that:
(a) it is not located in, organized under the laws of, or a resident of a country or territory subject to comprehensive sanctions or embargoes, including but not limited to Cuba, Iran, North Korea, Syria, or the Crimea, Donetsk, and Luhansk regions of Ukraine;
(b) it is not identified on any government-issued list of prohibited or restricted parties.
(c) it shall not, directly or indirectly, use, export, re-export, transfer, divert, or disclose any portion of the Services or related technology: (i) to or for the benefit of any entity or individual prohibited under applicable export control or sanctions laws; (ii) to or for the benefit of any entity or individual located in, organized under the laws of, or a resident of a country or territory subject to comprehensive sanctions or embargoes, including but not limited to Cuba, Iran, North Korea, Syria, or the Crimea, Donetsk, and Luhansk regions of Ukraine; or (iii) in any manner that would cause Photoroom or its Affiliates to be in violation of applicable export control or sanctions laws.
Monitoring. Photoroom reserves the right to monitor usage of the Services to ensure compliance with export control and sanctions laws. If Photoroom determines, in its sole discretion, that Customer’s use of the Services violates such laws or poses a risk of non-compliance, Photoroom may immediately suspend or terminate access to the Services without liability or notice.
Knowledge of export and embargoes regulations. It is Customer’s responsibility to remain informed of, and comply with, all relevant export control and sanctions regulations as they apply to the use of the Services.
13. Audit
Records Keeping. Customer shall keep and maintain true and complete records pertaining to its, End Clients’ and Users’ performance of the Agreement in sufficient detail to permit Photoroom to accurately determine whether Customer has fully complied with this Agreement. Customer shall maintain such records for at least three (3) years after the end of the Agreement.
Documentary Audit. Customer shall make the records referred in Section 13.1 available as soon as reasonably possible after the written request of Photoroom detailing the records requested for inspection and review of Customer’s compliance with the Agreement. Photoroom may not carry out a documentary audit under this Section more than once a calendar year.
Consequences of the documentary audit. If the audit reveals a material breach by Customer, Photoroom shall provide a written notice to cure the material breach within thirty (30) days, and the costs of the audit shall be borne by Customer only. The exercise by Photoroom of its audit right shall be without prejudice to any other remedies it may have under the Agreement, by law or otherwise.
14. Modification of the AI Services
Photoroom may modify, change, update and/or enhance the API and/or the AI Products or specifications thereof (a “Modification”) at any time in Photoroom’s sole and exclusive discretion. Customer acknowledges and agrees, on behalf of itself and the End Clients and Users, that such Modifications may affect Customer Application’s ability to access the AI Products and may require Customer to make reasonable changes to Customer Application at Customer’s cost to enable Customer Application to continue to be compatible with, and/or interface with, the API and AI Products. Photoroom, if reasonably possible, shall provide Customer with notice and details within a reasonable period prior to any material Modifications requiring changes to Customer Application (“Modification Notice”); provided, however, Photoroom shall not be liable for any costs incurred by Customer, End Clients or Users, lost profits or damages of any kind arising out of or in connection with any Modification. If the Modification or lack of Modification Notice have the purpose or effect to materially modify the purpose and/or economic balance of the Agreement, to lead to a violation of Photoroom’s warranty set forth in Section 7.3, Customer shall have the right to terminate the affected Order Form if Customer provides written notice to Photoroom and Photoroom fails to cure the breach of warranty in accordance with Section 7.4. Section 7.4 shall apply if Photoroom cannot resolve the breach of warranty.
15. General Terms
Entire Agreement. This Agreement is the only agreement between the parties about its subject and this Agreement supersedes all prior or contemporaneous statements (whether in writing or not) about its subject. Photoroom expressly rejects any terms included in Customer’s purchase order or similar document, which may only be used for accounting or administrative purposes. No terms or conditions in any Customer documentation or online vendor portal will apply to Customer's use of the AI Services unless expressly agreed to in a legally binding written agreement signed by an authorized Photoroom representative, regardless of what such terms may say.
Modifications, Severability, and Waiver. Except as stated otherwise in the Agreement, any waiver, modification, or change to the Agreement must be in writing and signed or electronically accepted by each party. If any term of this Agreement is determined to be invalid or unenforceable by a relevant court or governing body, the remaining terms of this Agreement will remain in full force and effect. The failure of a party to enforce a term or to exercise an option or right in this Agreement will not constitute a waiver by that party of the term, option, or right.
Governing Law and Chosen Courts. The Governing Law will govern all interpretations and disputes about this Agreement, without regard to its conflict of laws provisions. The parties will bring any legal suit, action, or proceeding about this Agreement in the Chosen Courts and each party irrevocably submits to the exclusive jurisdiction of the Chosen Courts.
Injunctive Relief. Despite Section 15.3 (Governing Law and Chosen Courts), a breach of Section 10 (Confidentiality) or the violation of a party’s intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. As a result, upon the actual or threatened breach of Section 10 (Confidentiality) or violation of a party’s intellectual property rights, the non-breaching or non-violating party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond and without limiting its other rights or remedies.
Non-Exhaustive Remedies. Except where the Agreement provides for an exclusive remedy, seeking or exercising a remedy does not limit the other rights or remedies available to a party.
Assignment. Neither party may assign any rights or obligations under this Agreement without the prior written consent of the other party. By exception to the foregoing, Photoroom is authorized to assign the Agreement to one of its Affiliates. Additionally, either party may assign this Agreement upon notice if the assigning party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which this Agreement relates. Any attempted but non-permitted assignment is void. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
Beta Products. If Photoroom gives Customer access to a Beta Product, the Beta Product is provided “AS IS” and Section 7.3 (Representations & Warranties From Photoroom) and any other warranty given by Photoroom under the Agreement do not apply to any Beta Products. SLA shall not apply to the Beta Products unless expressly agreed in writing by Photoroom. Customer acknowledges that Beta Products are experimental in nature and may be modified or removed at Photoroom's discretion with or without notice.
Logo Rights. Photoroom may identify Customer and use Customer's name and logo in marketing on any medium to identify Customer as a user of Photoroom's products and services. Customer may not use Photoroom’s name and logo without Photoroom’s consent.
Notices. Any notice, request, or approval about the Agreement must be in writing and sent to the notice address set out in the Order Form. Notices will be deemed given (a) upon confirmed delivery if by email, registered or certified mail, or personal delivery; or (b) two days after mailing if by overnight commercial delivery.
Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers. Neither party is authorized to bind the other to any liability or obligation.
No Third-Party Beneficiary. There are no third-party beneficiaries of this Agreement.
Force Majeure. Neither party will be liable for a delay or failure to perform its obligations of this Agreement if caused by a Force Majeure Event. However, this Section does not excuse Customer’s obligations to pay Fees.
Anti-Bribery. Neither party will take any action that would be a violation of any Applicable Laws that prohibit the offering, giving, promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist Photoroom or Customer in retaining or obtaining business. Examples of these kinds of laws include the U.S. Foreign Corrupt Practices Act, the French Act Sapin 2 and the UK Bribery Act 2010.
Titles and Interpretation. Section titles are for convenience and reference only. All uses of “including” and similar phrases are non-exhaustive and without limitation. The United Nations Convention for the International Sale of Goods and the Uniform Computer Information Transaction Act do not apply to this Agreement.
Signature. This Agreement may be signed in counterparts, including by electronic copies or acceptance mechanism. Each copy will be deemed an original and all copies, when taken together, will be the same agreement.
16. Definitions.
“Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest.
“Agreement” means the present Services Agreement, the Order Form, any annexes or exhibits, and any additional terms or agreement of any nature applicable to the Services included by cross reference therein.
“AI Products” means the artificial intelligence systems provided by Photoroom to Customer, as listed in the Order Form, and their Documentation.
“AI Services” means the provision of the API and AI Products by Photoroom to Customer.
“AI Services Fees” has the meaning set forth in the Order Form.
“API” means any form of machine accessible application programming interface, including all associated tools, elements, components and executables therein, and Documentation that Photoroom makes available to Customer to allow (i) Users to use the AI Products in accordance with the Agreement; and/or (ii) Customer to integrate Customer Application with the AI Products, as permitted under the Order Form.
“Applicable Data Protection Laws” means the Applicable Laws that govern how the Services may process or use an individual’s personal information, personal data, personally identifiable information, or other similar term.
“Applicable Laws” means the laws, rules, regulations, court orders, and other binding requirements of a relevant government authority that apply to or govern the provision and/or use of Services.
“Beta Product” means an early or prerelease feature or version of the AI Services that is identified as beta or similar, or a version of the AI Services that is not generally available.
“Chosen Courts” has the meaning set forth in the Key Terms.
“Confidential Information” means information in any form disclosed by or on behalf of a Discloser, including before the Effective Date, to a Recipient in connection with this Agreement that (a) the Discloser identifies as “confidential”, “proprietary”, or the like; or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Confidential Information includes the existence of this Agreement and all information in this Agreement, all or part of the API and AI Products, any Intellectual Property Rights related thereto and more generally any non-public information about the AI Products and API, and Customer Content.
“Covered Claim” means either a Photoroom Covered Claim or Customer Covered Claim.
“Customer” has the meaning set forth in the Order Form.
“Customer Application” means the software application, website, tool, service, or product for which the Users will use the AI Services.
“Customer Content” means Input and Output but excludes Feedback.
“Customer Covered Claim” has the meaning set forth in the Key Terms.
“Customer Users” means Users using the AI Services on behalf of Customer.
“Discloser” means a party to this Agreement when the party is providing or disclosing Confidential Information to the other party.
“Documentation” means the usage manuals and instructional materials for the AI Services that are made available by Photoroom to Customer either directly or that are made publicly available.
“Effective Date” has the meaning set forth in the Order Form.
“End Client” means any client of Customer, authorized by Customer to use the AI Services through Customer Application.
“End Client Users” means Users using the AI Services on behalf of End Clients.
“Feedback” means suggestions, feedback, or comments from Customer, End Client or Users for improvement of the AI Services.
"Fees" means the applicable amounts owed by Customer to Photoroom for the Services and described in the Order Form.
“Force Majeure Event” means an unforeseen event outside a party’s reasonable control where the affected party took reasonable measures to avoid or mitigate the impacts of the event, and which prevents a party to perform its obligations (except payment of Fees). Examples of these kinds of events include unpredicted natural disasters like a major earthquake, war, pandemic, riot, act of terrorism, or public utility or internet failure.
“GDPR” means European Union Regulation 2016/679 as implemented by local law in the relevant European Union member nation, and by section 3 of the United Kingdom’s European Union (Withdrawal) Act of 2018 in the United Kingdom.
“General Cap Amount” has the meaning set forth in the Key Terms.
“Governing Law” has the meaning set forth in the Key Terms.
“High Risk Activity” means any situation where the use or failure of the AI Services could be reasonably expected to lead to death, bodily injury, or environmental damage. Examples include full or partial autonomous vehicle technology, medical life-support technology, emergency response services, nuclear facilities operation, and air traffic control.
“Increased Cap Amount” has the meaning set forth in the Key Terms.
“Increased Claims” has the meaning set forth in the Key Terms.
“Indemnifying Party” means a party to this Agreement when the party is providing protection for a particular Covered Claim.
“Input” means the User’s prompts and other input, regardless of its format (e.g. text, image, video, audio) that Users submit to the AI Products.
"Intellectual Property Rights" means any right or protection existing from time to time in any jurisdiction, whether registered or not, under any patent law or other invention or discovery law, copyright law, trademark law, performance or moral rights law, trade-secret law, confidential information law, integrated circuit topography law, semi-conductor chip protection law, data law, database law, trade-mark law, unfair competition law or other similar intellectual property laws and includes related legislation by competent governmental authorities and related judicial decisions under common law or equity.
"Key Terms” means the cover page of the Order Form that includes the key legal details high for this Agreement. The Key Terms may include details about Covered Claims, set the Governing Law, or contain other details about this Agreement.
“Modification” has the meaning set forth in Section 14.
“New Subscription Period” has the meaning set forth in the Order Form.
“Non-Renewal Notice Date” has the meaning set forth in the Order Form.
“Notice of Modification” has the meaning set forth in Section 14.
“Output” means the new content generated by the AI Products based on Input.
“Order Form” means the cover page that includes the key business details for this Agreement that are not defined in the Services Agreement. An Order Form includes the policies and documents referenced in or attached to the Order Form. An Order Form may include details about the level of access and use granted to the Service, length of Service Term, or other details about the Services.
“Personal Data” will have the meaning(s) set forth in the Applicable Data Protection Laws for personal information, personal data, personally identifiable information, or other similar term.
“Photoroom” has the meaning set forth in the Order Form.
“Photoroom Covered Claim” has the meaning set forth in the Key Terms.
“Prohibited Data” means (a) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act; (b) credit, debit, bank account, or other financial account numbers; (c) social security numbers, driver’s license numbers, or other unique and private government ID numbers; (d) special categories of data and/or data related to criminal offenses as defined in the GDPR; and (e) other similar categories of sensitive information as set forth in the Applicable Data Protection Laws.
“Prohibited Uses” means the prohibited uses of the AI Services listed in Section 2.1 (b) of the Services Agreement.
“Protected Party” means a party to this Agreement when the party is receiving the benefit of protection for a particular Covered Claim.
“Recipient” means a party to this Agreement when the party receives Confidential Information from the other party.
“Services” means the AI Services, and Support Services.
“Service End Date” has the meaning set forth in the Order Form.
“Service Start Date” has the meaning set forth in the Order Form.
“Service Term” means the overall duration of the Agreement.
“Support Services” has the meaning set forth in the Order Form.
“Subscription Period” has the meaning set forth in the Order Form.
“Support Services Fees” has the meaning set forth in the Order Form.
“Unlimited Claims” has the meaning set forth in the Key Terms.
“Usage Data” means data and information about the provision, use, and performance of the Services based on Customer, End Client or User’s use of the AI Services, including but not limited to Customer Content, and data and information related to Users (e.g. email address).
“User” means any individual who uses the AI Services whether on Customer’s behalf or on End Customer’s behalf.