Terms and Conditions

These Terms and Conditions for Vendors are legally binding agreements with the vendor/provider of the product or service that will be sold through the PhotoWhoa.com website.

ARTICLE 1: DEFINITIONS

For purposes of this Agreement, the following terms shall have the indicated definitions:

“Hummingbird Web Solutions Private Limited and its wholly owned subsidiary HB Digital Inc, collectively referred to as ‘The Company,’ own the website located at www.PhotoWhoa.com.”

Confidential Information:

means any data or information, oral or written, treated as confidential that relates to either Party’s (or, if either Party is bound to protect the confidentiality of any third party’s information, such third party’s) past, present, or future research, development or business activities, including any unannounced product(s) and service(s), any information relating to services, developments inventions, processes, plans, financial information, forecasts, and projections and the financial terms of this Agreement.

Notwithstanding the foregoing, Confidential Information shall not be deemed to include information if: (i) it was already known to the receiving Party prior to the date of this Agreement as established by documentary evidence; (ii) it is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving Party; (iii) it has been rightfully received by the receiving Party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; or (iv) it is required to be disclosed pursuant to final binding order of a governmental agency or court of competent jurisdiction, provided that the owner of the Confidential Information has been given reasonable notice of the pendency of such an order;

Digital Content:

means all materials comprising a Vendor’s product, including, but not limited to, any software, services, images, photographs, illustrations, graphics, audio clips, video clips, documentation or text, and Marks;

E-commerse services:

E-commerce services means the sales of products by The Company to its customers via The Company’s Site or Promotional Third-Party Site(s);

Effective Date: means the date when this Agreement shall be executed by the last Party;

Intellectual Property Rights means all patent rights, copyright rights, mask work rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, rights over databases and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction;

Marks means all trademarks, service marks, trade names, logos, words or symbols identifying either Party or either Party’s respective products or services;

Party or “Parties” means DealFuel and/or Vendor;

Promotional Third-Party Site(s) means one or more websites or web services owned or controlled by The Company or upon which The Company has an account or membership, on which The Company promotes and sells the Vendor’s Digital Content

Customer means any individual/legal entity who purchases any products from The Company’s Site or Promotional Third-Party Site(s).

ARTICLE 2: SCOPE
Under this Agreement, the Vendor appoints The Company to perform promotional and e-commerce sales in relation to the Vendor’s Digital Content in order to sell the Vendor’s Digital Content through The Company Site or Promotional Third-Party Site(s).

ARTICLE 3: PAYMENT
3.1 Payment. For the sale of the Vendor’s Digital Content through The Company’s Site or Promotional Third-Party Site(s) instructed by The Company, the latter shall pay to the Vendor a payment in the percentage set forth in the Agreement out of the price actually paid by a Customer for the respective Digital Content less any refunds and/or taxes retained by The Company for each sale that takes place either through the The Company Site or through Promotional Third-Party Site(s) instructed by The Company.

3.2 Payment Terms. The payment by The Company for the amounts specified in the Agreement shall be made within the timeframe indicated in the Agreement.

3.3 Taxes. Each Party is responsible for the calculation and payment of any/all of their taxes for the incomes obtained under this Agreement.

ARTICLE 4: TERM

The term of this Agreement shall commence on the Effective Date and remain ongoing as mentioned in the Agreement from the Effective Date (the “Term”).

ARTICLE 5: RIGHTS AND OBLIGATIONS OF THE PARTIES
5.1 Nonexclusive Right. The Vendor grants to THE COMPANY a nonexclusive right to promote and sell its Digital Content on THE COMPANY’s Site or Promotional Third-Party Site(s) during the term of this Agreement.

5.2 Promoting and selling strategy. THE COMPANY shall promote and sell the Vendor’s Digital Content in the manner determined appropriate by THE COMPANY and in compliance with its own promoting and selling strategy, which may include preparation of the featured image and description of the Digital Content; setup the systems so customers can access the product as fast as possible; distribute the Digital Content based on the type of product so as to reach the appropriate audience see it; links to Promotional Third-Party Site(s).

5.3 Selling system. The sales of Vendor’s Digital Content by THE COMPANY shall be affected through THE COMPANY’s billing or/and other authorized, server and computer systems.

5.4 License. Subject to the terms and conditions of this Agreement and solely for the purpose of fulfilling THE COMPANY’s obligations hereunder, Vendor hereby grants to THE COMPANY during the Term, to the full extent permitted by the applicable law, a non-exclusive, worldwide, royalty-free license to use any of the Vendor’s Intellectual Property Rights and display any product information, specifications, warranty information, data, images, and/or intellectual property Vendor furnishes to THE COMPANY for use in its e-commerce business during the Term. THE COMPANY may use such rights for any purpose related to this Agreement in furtherance of promoting and selling Vendor’s Digital Content including use in THE COMPANY Site or Promotional Third-Party Site(s), emails, and marketing or advertising campaigns. Vendor acknowledges that THE COMPANY is relying upon Vendor to ensure that all such content is accurate and complete and Vendor agrees to notify THE COMPANY and revise and resubmit such content promptly upon discovery that it is inaccurate or incomplete.

The above license shall contain a temporary

(a) reproduction right (including the right to storing the Digital Content in any medium and make copies which are transient or incidental to the use of the Digital Content);

(b) the right to lawfully make available to the public the Digital Content;

(c) to publicly publish and distribute, in electronic form, the Digital Content; and
(d) to create derivative works or modifications to the Digital Content for editorial or stylistic reasons.

Vendor grants THE COMPANY the right to allow Customers to copy, print and use the Digital Content.

5.5 Intellectual Property. Each Party retains all right, title and interest, including all Intellectual Property Rights, in and to (a) its Marks, content, database(s) and site; and (b) any inventions, developments or technology resulting from or in connection with the performance of such Party’s obligations hereunder. Except as expressly set forth in Article 5.4 above, each Party reserves all rights and grants the other Party no licenses of any kind hereunder.
Except as expressly provided herein above, THE COMPANY and Vendor agree to (a) not use the other Party’s Intellectual Property Rights without their prior written consent, (b) only use the other Party’s Intellectual Property Rights in accordance with any quality standards and usage guidelines as may be provided by such other Party; and (c) upon termination of this Agreement for any reason, immediately cease all use of the other Party’s Intellectual Property Rights

5.6 Use of the Marks. THE COMPANY shall have the right to place the Vendor’s logo, tradename and trademark on the THE COMPANY’s Site or Promotional Third-Party Site(s) as a means to identify the Vendor and to otherwise use such items in connection with the purposes of this Agreement. THE COMPANY shall follow all reasonable directions from the Vendor concerning the protection under applicable laws of such logo, tradename and trademark.

5.7 Products and Services. Both THE COMPANY and Vendor reserve the right at any time without liability or prior notice to:
(a) determine the contents of each Party’s own respective websites, products and services, including specifications, features, and functions, as well as any documentation or related materials;
(b) discontinue distribution of any or all of each Party’s own respective products and services in some or all markets or through some or all channels of distribution;
(c) change or terminate any of each Party’s own respective specifications, features, or functions of the presentation aspects of products and services;
(d) change or terminate the level or type of support or service that each Party makes available for their products and services at any time and without notice.

5.8 Service Support. Neither Party is responsible to the other Party for any customer service support for purchases and fulfilment of the other Party’s products and services including but not limited to, providing qualified personnel to receive customer inquiries.

5.9 Name of the Digital Content. Solely for the purpose of fulfilling its obligations hereunder, THE COMPANY be entitled to change, at its sole and absolute discretion and based on its own marketing strategy, the name of the Vendor’s Digital Content given by the latter.

5.10 The Company website. Vendor agrees and acknowledges that The Company shall have the sole right for the design, look and feel, architecture, layout, positioning and all aspects of The Company’s Site including listing, positioning, indexing and placement of the Digital Content offered for sale by the Vendor and the latter shall not question or dispute such exercise of The Company right.

ARTICLE 6: REPRESENTATIONS AND WARRANTIES
6.1 Reps and Warranties of THE COMPANY. THE COMPANY represents and warrants to Vendor that it has sufficient right, title, interest, authority or permission, as applicable, to undergo such commercial and promotional activities on THE COMPANY Site or through Promotional Third-Party Site(s).

6.2 Reps and Warranties of Vendor. The Vendor represents and warrants to The Company that:
(a) it has the capacity / power to conclude agreements according to the applicable law and that the execution of this Agreement shall not result in violating any agreement with a third party or the applicable law;
(b) it is the author and / or the lawfully owner of the Intellectual Property Rights over the Digital Content;
(c) the Digital Content does not infringe or violate any third party’s rights (including but not limited to Intellectual Property Rights);
(d) the Digital Content complies with all applicable laws and regulations.

ARTICLE 7: TERMINATION
7.1 Termination cases. This Agreement may be terminated:

(a) by any of the Parties, at any time, for any reason or for no reason, but subject to a fifteen (15) days prior written notice;
(b) for cause: if either Party defaults in the performance of any material provision of this Agreement, then the non-defaulting Party may give written notice to the defaulting Party that if the default is not cured within fifteen (15) days the Agreement will be terminated. If the non-defaulting Party gives such notice and the default is not cured during the fifteen (15) day period, then the Agreement shall automatically terminate at the end of that period;

(c) for insolvency and related events: this Agreement shall terminate, without notice,
(i) upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of such Party’s debts,
(ii) upon either Party’s making an assignment for the benefit of creditors, or
(iii) upon either Party’s dissolution or ceasing to do business.

7.2 Effect of Termination. Upon termination of this Agreement, THE COMPANY will discontinue all further promotion of Vendor’s products and services pursuant to this Agreement. Without limiting the generality of the foregoing, THE COMPANY shall cease all display, advertising, and use of all of Vendor’s Intellectual Property Rights and will not thereafter use, advertise, or display any such Intellectual Property Rights unless otherwise agreed by Vendor in writing.

7.3 Survival of Certain Terms. The provisions of Article 5.5 (Intellectual Property), 6 (Representations and Warranties), 7.3 (Effect of Termination), 8 (Indemnification, Damages and Incurred Liabilities), 9.1 (Confidentiality), 9.3 (Notices and correspondence), 9.4 (Governing Law and Jurisdiction) of this Agreement shall survive the expiry of the Term or termination of this Agreement for any reason. All other rights and obligations of the Parties shall cease upon termination of this Agreement.

ARTICLE 8: INDEMNIFICATION, DAMAGES AND INCURRED LIABILITIES
8.1 Indemnification. EACH PARTY SHALL PROMPTLY ON DEMAND INDEMNIFY, DEFEND AND HOLD HARMLESS THE OTHER PARTY, ITS AFFILIATES, SUBSIDIARIES, OFFICERS, MANAGERS, PARTNERS, EMPLOYEES AND AGENTS (“INDEMNIFIED PARTIES”) FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, LOSSES, CIVIL PENALTIES, LIABILITIES, DAMAGES, COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEY’S FEES AND COURT COSTS INCURRED OR TO BE INCURRED BY THE INDEMNIFIED PARTIES THAT ARISE OUT OF, IN ANY WAY RELATE TO, OR RESULT FROM: (A) BREACH BY THE VENDOR OF ANY OF THE PROVISIONS OF THIS AGREEMENT OR NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT OF THE VENDOR; AND / OR (B) FAILURE OF VENDOR OR VENDOR’S DIGITAL CONTENT TO COMPLY WITH THE APPLICABLE LAWS; AND/OR (C) USE BY THE VENDOR OF OR INFRINGEMENT BY THE VENDOR OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.

For the avoidance of doubt, it is further clarified that the right to indemnification in connection with any of the aforesaid claims is independent and in addition to other rights and remedies of the Indemnified Person that may be available at law or in equity. THE COMPANY shall have a lien on the Digital Content and on the consideration received from the Customer for the sale of the Digital Content on THE COMPANY Site or on Promotional Third-Party Site(s) until Vendor has fully discharged its obligations and liabilities to Indemnified Parties in accordance with this Agreement. In the event Vendor is unable to indemnify the Indemnified Parties within a reasonable period of time, THE COMPANY shall be entitled to sell or otherwise dispose of the Digital Content and set off the proceeds out of such sale and disposing off against Indemnified Parties’ indemnification claims.

8.2 Warranty Disclaimer. EACH PARTY’S PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” UNLESS OTHERWISE PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO ITS PRODUCTS / SERVICES OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER PARTY WARRANTS THAT ITS PRODUCTS OR SERVICES WILL BE FREE OF DEFECTS, INACCURACIES, OR ERRORS, WILL MEET THE OTHER PARTY’S OR ANY CUSTOMERS’ REQUIREMENTS.

THE COMPANY specifically disclaims any and all express or implied warranties with respect to THE COMPANY’s Site and this is provided on “as is” basis.

8.3 Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY, OR FROM NEGLIGENCE OR STRICT LIABILITY), INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE OR FROM ANY DEFECT OR ERROR IN ITS PRODUCTS OR SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE AGGREGATE LIABILITY OF THE COMPANY ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS PAID TO THE VENDOR UNDER THIS AGREEMENT.

ARTICLE 9: GENERAL

9.1 Confidentiality. Each Party acknowledges and agrees that any Confidential Information received from the other Party shall be the sole and exclusive property of the other Party and may not be used or disclosed except as necessary to perform the obligations required under this Agreement. Upon termination of this Agreement, each Party shall promptly return all information, documents, manuals and other materials belonging to the other Party except as otherwise provided in this Agreement.

9.2 Independent Contractor. Neither Party shall be deemed to be an agent of the other Party for any purpose, and the relationship between the Parties shall only be that of independent contractors. Neither Party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.

9.3 Notices and correspondence. Any notice, consent or waiver required or permitted hereunder shall be effective only if it is in writing and shall be deemed received by the Party to which it is sent (a) upon delivery when delivered by hand, (b) five (5) business days after being sent, if sent with all sending expenses prepaid, by an express courier with a reliable system for tracking delivery, (c) when transmitted ok, if sent by confirmed facsimile, addressed at the addresses mentioned in the preamble. When the Vendor send emails to THE COMPANY, Vendor agrees and understands that it is communicating with THE COMPANY through electronic records and Vendor consents to receive communications via electronic records from THE COMPANY periodically and as and when required. THE COMPANY will communicate with Vendor by email at the designated electronic e-mail address provided by the Vendor at the time of registration on THE COMPANY Site or in this Agreement, as relevant.

9.4 Assignment. Neither Party shall assign, delegate, or otherwise transfer its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of the other Party (which shall not be unreasonably withheld). THE COMPANY may assign this Agreement freely in connection with a merger, acquisition, sale of substantially all of its assets or stock, financing, reorganization, or similar transaction. This Agreement will inure to the benefit of the Parties and their permitted successors and assigns.

9.5 Further Assurance. Each Party shall co-operate with the other Party and execute and deliver to the other Party such instruments and documents and take such other actions as may be reasonably requested from time to time in order to carry out, evidence and confirm their rights and obligations hereunder and the intended purpose of this Agreement and to ensure the complete and prompt fulfillment, observance and performance of the provisions of this Agreement and generally that full effect is given to the provisions of this Agreement.

9.6 Negotiation. Vendor acknowledges and confirms that it has read, reviewed and approved this Agreement and that it had the benefit of negotiating the terms and provisions hereof and its rights and obligations hereunder.

9.7 Entire Agreement, Modification and Waiver. This Agreement constitutes the entire agreement between THE COMPANY and Vendor with respect to the subject matter hereof, and merges all prior negotiations and drafts of the Parties with regard thereto. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement shall be effective unless in writing. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.

9.8 Severability. If any of the provisions of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable under any applicable statute or rule of law, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions shall continue in full force and effect.

9.9 Counterparts. This Agreement was executed in two (2) counterparts, one for each party, each of which shall be deemed an original and all of which together shall constitute one instrument.