These Terms of Service (“Terms”) is entered into and effective as of the start of use (the “Effective Date”) by FotoIN Mobile Corporation (“FotoIN”), a Delaware corporation whose principal office is located at 3350 Riverwood Parkway Suite #1900, Atlanta, Georgia 30339, and the user (“Customer” and, together with FotoIN, the “Parties”).
A. FotoIN develops and markets a field photo and information capture and management service (the “Service”) which includes the mobile application for mobile smart devices (the “FotoIN Mobile App”) and supporting storage connections, network and system services (the “FotoIN Backend”) each as more fully described in The selected Plan or Package as selected during registration or on the web management portal. The Service enables users to capture field photos, tag and annotate photos, including capturing field information, and generate reports in the field, and then automatically transmits, indexes, sorts and organizes captured photos with tags, annotations, other information, GPS coordinates (geotags), date, time and unique device/user idenitificators embedded into the photo/s as metadata, based on such embedded metadata, into appropriate destinations in external cloud storage providers (“Cloud Storage”), Customer’s own computer Systems, including internet based Systems, (“Customer Systems”) or FotoIN’s Backend. The Service also enables fast search and identification of the appropriate image/photo or images/photos with the matching metadata embedded within the photo.
B. Customer desires that FotoIN provide the FotoIN Service to Customer as described in the selected Plan or Package and FotoIN wishes to provide such Services to Customer.
C. Customer wishes to enable its authorized employees, agents, and contractors (“Customer Users”) to use the Service for capturing photos and information in the field, on smart devices, and automatically submitting captured photos and information to Customer’s storage provider supported by FotoIN (the “Permitted Use”) and FotoIN wishes to support such use of the FotoIN Service by providing access to, maintaining, and supporting the FotoIN Service according to these Terms.Accordingly, FotoIN and Customer agree as follows:
1.1 “Confidential Information” means (a) all written information of a Party marked “confidential,” “restricted,” “proprietary” or with a similar designation; (b) information a Disclosing Party transmitted orally to a Recipient that the Disclosing Party identifies in writing as confidential within 30 days of such oral disclosure; (c) all Customer Confidential Information; and (d) all FotoIN Confidential Information.
1.2 “Credentials” means passwords, electronic or physical authentication tokens, API keys or other means of controlling access to Customer Systems or the FotoIN Services.
1.3 “Customer Confidential Information” means all Customer lists, financial information and sales and marketing plans of Customer.
1.4 “Customer Data” means (i) all data, photographs, videos, recordings, and other information entered or captured by Customer Users using the FotoIN App and sent to Customer Services and (ii) any reports, summaries, indexes and similar materials generated by the FotoIN Services at the direction of Customer or Customer Users. Customer Data does not include any portion of the FotoIN Service as such.
1.5 “FotoIN Confidential Information” means (i) technical information, data or other proprietary information relating to the FotoIN Services (including all source codes, object codes, software programs, computer processing systems and techniques employed or used by FotoIN, and any related items such as specifications, layouts, flow charts, manuals, instruction books and training materials, programmer, technical and user documentation, and any and all upgrades, enhancements, improvements or modifications to the foregoing), and (ii) all FotoIN financial information.
1.6 “Internet” means any Systems s for distributing digital electronic content and information to end users via transmission, broadcast, public display, or other forms of delivery, whether direct or indirect, whether over telephone lines, cable television Systems s, optical fiber connections, cellular telephones, satellites, wireless broadcast, or other mode of transmission now known or subsequently developed.
1.7 “Launch Date” will mean that date on which the FotoIN Services are first generally available for use by the Customer.
1.8 “Specifications” shall mean the specifications for the FotoIN Services described by the selected Plan or Package published online at the time of the start of use, as it may be amended or replaced from time to time by FotoIN. If and when the Specifications are modified or replaced. The new Specifications be deemed to supersede or supplement (as the case may be) the selected Plan or Package.
1.9 “Term” means the period of time commencing on the Effective Date and continuing as defined in the selected Plan or Package or until the Service is terminated pursuant to Section 12.
1.10 “Usage Data” means such data as FotoIN may capture relating to the Customer Users’ usage of the FotoIN Services including, without limitation, (i) new additions to the Services, (ii) total reports completed, (iii) frequency of upload, (iv) number of photos taken, (v) fields completed and (vi) information lines completed.
2.1 FotoIN grants Customer a limited, nonexclusive, nontransferable license to use the FotoIN Services during the Term solely for the Permitted Use, subject to the terms and conditions of these Terms.
2.2 FotoIN shall deploy, support and maintain the FotoIN Services in accordance with the Specifications and the other terms and conditions contained in these Terms.
2.3 The parties contemplate that there may be additions, deletions or other changes to the Specifications or the selected Plan or Package required during the Term. Any such additions, deletions or other changes to the Specifications must be mutually agreed to by FotoIN and Customer, which agreement shall not be unreasonably withheld by either party.
3.1 The FotoIN Services (including any customizations or modifications prepared for Customer or at Customer’s request but excluding any Customer Intellectual Property incorporated into the FotoIN App) is the exclusive property of FotoIN. These Terms convey no ownership interest in the FotoIN Services or any portion thereof to Customer.
3.2 At Customer’s written request, FotoIN may incorporate intellectual property owned or licensed by Customer into the FotoIN App prepared for Customer (such incorporated intellectual property, “Customer Intellectual Property”). Customer grants FotoIN a limited license to use, store, transmit, reproduce, create derivative works from, distribute, publicly perform or display the Customer Intellectual Property solely to the extent necessary to operate the FotoIN Services for the Customer Users or provide the Services to Customer.
3.3 FotoIN may collect and store Usage Data during its operation of the FotoIN Services. All Usage Data is the exclusive property of FotoIN. FotoIN grants Customer a nonexclusive, perpetual license to Usage Data collected from Customer Users.
3.4 All Customer Data is the exclusive property of Customer. Customer has sole liability and responsibility for maintaining and storing Customer Data. Customer grants FotoIN a limited license to store, transmit, reproduce, create derivative works from, distribute, publicly perform or display the Customer Data solely to the extent necessary to operate the FotoIN Services or provide the Services.
3.5 Customer Systems are and will remain the exclusive property of Customer. Customer has sole liability and responsibility for operating, maintaining and supporting Customer Systems.
3.6 Customer acknowledges that the FotoIN Services are made available to Customer on a non-exclusive basis and that FotoIN may provide FotoIN Services (including potential customizations) to other parties for use in connection with a variety of applications. Except as may be expressly provided to the contrary elsewhere in these Terms, nothing in these Terms will be deemed to (i) limit or restrict FotoIN from customizing and providing its software and technology to other parties for any purpose, or (ii) in any way affect the rights granted to such other parties.
4.1 FotoIN will employ reasonable security measures which FotoIN determines are appropriate for commercial deployment to protect portions of the FotoIN Services storing Customer Data and any Customer Systems to which FotoIN is given access.
4.2 If FotoIN provides Credentials to Customer or Customer Users, then Customer is responsible for maintaining the security of such Credentials and is responsible for all use of the FotoIN Services and Customer Systems under such Credentials.
SECTION 5. FEES, PAYMENT TERMS AND TAXES
5.1 Customer shall pay to FotoIN the fees and charges as detailed in the selected Plan or Package for use of the FotoIN Services.
5.2 FotoIN shall supply to Customer digital or written invoices for all amounts due under the selected Plan or Package, and payments will be due under terms as defined in the selected Plan or Package , but in all cases within 30 days of the date of invoice. Customer shall pay to FotoIN interest on any amounts which are not paid when due at the rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is less.
5.3 Customer shall pay to or reimburse FotoIN for all federal, state, local or other sales or services taxes or assessments (exclusive of any based on the net income of FotoIN) levied or assessed upon the amounts paid by Customer under the selected Plan or Package.
6.1 This Section 6 applies only if Customer selects the pricing option in The selected Plan or Package, that includes a minimum monthly commitment payment.
6.2 The prices for access to the FotoIN Services were determined by mutual agreement of the Parties based upon certain assumed volumes of processing activity and the length of the Term. Customer acknowledges that without the certainty of such revenue during the remainder of the Term, FotoIN would have been unwilling to provide access to the FotoIN Services at the prices set forth in these Terms. The parties agree that it would be difficult or impossible to ascertain FotoIN’s actual damages for a breach of these Terms by Customer resulting in a termination of the selected Plan or Package before the end of the Term. Accordingly, in the event of a termination of the selected Plan or Package by Customer under the provisions of Section 11.04 of these Terms or by FotoIN under the provisions of Section 11.03 of these Terms, Customer agrees to pay FotoIN as liquidated damages an amount equal to 60% of the then remaining monthly minimum usage fees for the Services (as set forth in The selected Plan or Package).
6.3 The parties acknowledge and agree that, after taking into account the terms of these Terms and the selected Plan or Package and all relevant circumstances at the date hereof, the amount of liquidated damages payable by Customer is a reasonable and genuine estimate of the actual nonoutofpocket damages which FotoIN would suffer if FotoIN were to fail to receive Customer’s business for the remainder of the Term, and, in any event, does not constitute a penalty. Despite the foregoing, nothing in these Terms shall limit FotoIN’s right to recover from Customer: (a) any amounts for which Customer is liable at the time of termination; (b) any payment under any indemnification provision of these Terms; or (c) any incremental outofpocket costs incurred by FotoIN from the termination, such as severance costs.
SECTION 7. WARRANTIES; DISCLAIMERS; LIMITATION OF LIABILITY
7.1 Warranty. FotoIN warrants that the FotoIN Services will conform to the Specifications in all material respects and that it will use commercially reasonable care in performing the Services. Except for any termination rights expressly provided in Section 12, Customer’s sole and exclusive remedy for any breach of any warranty shall be requiring FotoIN to take such actions as reasonably necessary to correct the error, problem or quality of performance resulting in the breach of warranty.
7.2 Security. Customer understands and acknowledges that certain risks are inherent in the transmission of information over the Internet. Customer chooses to use the FotoIN Services under the security measures provided by FotoIN even though other security procedures may be available. FotoIN makes no representation, warranty, covenant or agreement that its security measures will be effective and neither FotoIN nor its successors or assigns shall have any liability for the breach of its security measures, or the integrity of the FotoIN Services, unless caused by the willful misconduct or gross negligence of FotoIN or its employees.
7.3 DISCLAIMER. THE WARRANTIES SET FORTH IN THIS SECTION 7 STATE FOTOIN’S SOLE AND EXCLUSIVE WARRANTY TO CUSTOMER CONCERNING THE PRODUCT AND THE SERVICES AND CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, THE FOTOIN SERVICES AND THE SERVICES ARE PROVIDED STRICTLY “AS IS,” AND FOTOIN MAKES NO ADDITIONAL WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO ANY SERVICES, SOFTWARE, HARDWARE OR ANY MATTER WHATSOEVER. IN PARTICULAR, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE EXPRESSLY EXCLUDED. THESE WARRANTIES ARE LIMITED AND ARE THE ONLY WARRANTIES MADE BY FOTOIN. FOTOIN DOES NOT WARRANT THAT THE OPERATION OR USE OF THE FOTOIN SERVICES WILL BE ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED.
7.4 LIMIT OF LIABILITY. THE LIABILITY OF FOTOIN FOR DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS OR THE SELECTED PLAN OR PACKAGE FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, LAW, EQUITY OR OTHERWISE (A “CLAIM”), INCLUDING BUT NOT LIMITED TO MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, TORTIOUS CONDUCT, REPRESENTATIONS, ERRORS, OR OTHER DEFECTS, WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION, SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER TO FOTOIN DURING THE PERIOD OF THE SHORTER OF (I) 90 DAYS PRIOR TO NOTIFICATION BY CUSTOMER TO FOTOIN OF SUCH CLAIM OR (II) THE PERIOD DURING WHICH SUCH CLAIM SHALL BE CONTINUING. THE REFUND OF SUCH AMOUNT SHALL BE THE SOLE REMEDY OF CUSTOMER AND THE SOLE LIABILITY OF FOTOIN HEREUNDER, WHICHEVER IS GREATER.
7.5 NO SPECIAL DEMAGES. NOTWITHSTANDING ANY OTHER PROVISION HEREOF, FOTOIN SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS OR LOST REVENUES), WHETHER OR NOT CAUSED BY THE ACTS OR OMISSIONS OR NEGLIGENCE OF ITS EMPLOYEES OR AGENTS, AND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, LAW, EQUITY OR OTHERWISE, AND REGARDLESS OF WHETHER FOTOIN HAS BEEN INFORMED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.
7.6 Acknowledgment. Customer and FotoIN expressly acknowledge that the limitations contained in this Section 7 represent their express agreement with respect to the allocation of risks between them as related to the amount of the consideration each is to receive under these Terms and the selected Plan or Package, and each of Customer and FotoIN fully understands and accepts such limitations.
8.1 The Parties desire to exchange certain information relating to their respective businesses in order to perform their respective obligations under these Terms and the selected Plan or Package (the “Business Purpose”). Each Party recognizes that the other party may furnish it orally or in writing with certain non-public, confidential, and proprietary information concerning the disclosing party. The Party disclosing Confidential Information is a “Disclosing Party” the Party receiving Confidential Information is a “Recipient.”
8.2 Each Party shall use at least the same degree of care it uses to protect its own Confidential Information (though in no case less than a reasonable degree of care) to prevent disclosure to other persons of the Confidential Information of the other Party; provided, however, that each Party may disclose such information to its employees and authorized agents who have a need to know such information and who are under confidentiality obligations that offer at least as much protection against disclosure of such Confidential Information as these Terms. The disclosing party shall be responsible for any breach by any such employee or agent of any such confidentiality obligations. Following the termination of the selected Plan or Package, upon written request by a Party, the other Party shall return promptly to the requesting Party all Confidential Information of the other Party to the extent it is then in such other Party’s possession or control (provided that the other Party may retain a copy of such information to the extent necessary to exercise its rights or perform any continuing obligations under these Terms and the selected Plan or Package) and certify in writing its compliance with this sentence. Recipient covenants, promises and agrees to use the Disclosing Party’s Confidential Information only for the Business Purpose.
8.3 Notwithstanding the foregoing, Confidential Information will not include any particular information which would otherwise be considered Confidential Information that the Receiving Party can demonstrate (a) was in the public domain at the time of disclosure to the Receiving Party; (b) after disclosure to the Receiving Party, is published or otherwise becomes part of the public domain through no fault of the Receiving Party; (c) was in the possession of the Receiving Party at the time of disclosure to it without being subject to another confidentiality agreement; (d) was received after disclosure to the Receiving Party from a Third Party who had a lawful right to disclose such information to the Receiving Party; or (e) was independently developed by the Receiving Party without reference to Confidential Information of the Disclosing Party. In addition, a Party shall not be considered to have breached its obligations under this
Section 8 for disclosing Confidential Information of the other Party if in the opinion of such Party’s legal counsel, such disclosure is required by legal process or pursuant to any applicable statute, rule or regulation, including regulation of a stock exchange. Except with respect to securities laws, disclosure obligations or other applicable laws which require immediate disclosure, the Party which desires to make such legally compelled disclosure shall advise the other Party of its intentions sufficiently in advance of the disclosure to allow the other Party a reasonable period of time in which to object to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other appropriate action to protect the Confidential Information.
8.4 Except for the Business Purpose and licenses specifically granted in the selected Plan or Package, Disclosing Party has not granted Recipient any rights to use the Confidential Information.
9.1 Customer represents that it has the full power to enter into the selected Plan or Package, accept these Terms and perform its obligations hereunder.
9.2 FotoIN represents that it has the full power to enter into the selected Plan or Package, these Terms and perform its obligations hereunder.
10.1 FotoIN agrees, subject to limits of liability set forth in Section 7, to indemnify, defend and hold harmless Customer from any costs, damages, and reasonable attorneys’ fees resulting from any claims by any third party that the FotoIN Services made available for use by Customer directly infringes any United States patent, or copyright, or misappropriates any trade secret arising under the laws of the states of the United States. If FotoIN receives notice of an alleged infringement, or if Customer’s use of the FotoIN Services shall be prevented by permanent injunction, FotoIN may, at its sole option and expense: (i) procure for Customer the right to continue using the FotoIN Services as provided hereunder; (ii) modify the FotoIN Services so that it is no longer infringing; or (c) replace the FotoIN Services or any portion thereof with components of equal or superior functional capability. If none of the foregoing is commercially reasonable, FotoIN shall have the right to terminate the selected Plan or Package.
10.2 Customer agrees to indemnify, defend and hold harmless FotoIN from any costs, damages, and reasonable attorneys’ fees arising out of or resulting from any claim, demand, charge, action, cause of action or other proceeding asserted by any third party against FotoIN which arises in connection with, or relates to Customer’s use or Customer User’s use of the FotoIN Services delivered to under these Terms and the selected Plan or Package or any breach by Customer or Customer Users of these Terms and the selected Plan or Package.
10.3 No obligation to indemnify which is set forth in this Section 11 shall apply unless the party claiming indemnification notifies the other party as soon as practicable (within thirty (30) days after the notice, or such shorter period as is required to avoid any prejudice in the claim, suit or proceeding) of any matters in respect of which the indemnity may apply and of which the notifying party has knowledge, and gives the other party the opportunity to control the response to and defense of such claim; provided, however, that the indemnitee shall have the right to participate in any legal proceedings to contest and defend a claim for indemnification involving a third party and to be represented by its own attorneys, all at the indemnitee’s cost and expense; provided further, however, that no settlement or compromise of an asserted third party claim other than one for the payment of money may be made without the prior written consent of the indemnitee.
SECTION 11. TERM; TERMINATION AND OTHER REMEDIES
11.1 These Terms and the selected Plan or Package shall be in force until the end of the Term unless earlier terminated pursuant to this Section 12.
11.2 Either Party may suspend performance and/or terminate the selected Plan or Package and these Terms immediately upon written notice to the other Party if: (i) the other Party is in material breach of these Terms (which includes failure to pay amounts due under the selected Plan or Package) and fails to cure that breach within thirty (30) days after written notice thereof; or (ii) the other Party becomes insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency; or suffers or permits the commencement of any form of insolvency or receivership proceeding; or has any petition under any bankruptcy law filed against it, which petition is not dismissed within sixty (60) days of such filing; or has a trustee or receiver appointed for its business or assets or any part thereof.
11.3 FotoIN may terminate the selected Plan or Package and these Terms for any reason or for no reason upon ninety (90) days prior written notice to Customer; provided, however, that in such event of termination by FotoIN, Customer shall be entitled to continue to use the FotoIN Services during the period in which Customer is developing or procuring a replacement for the FotoIN Services, which period may not to exceed one hundred eighty (180) days from the effective date of the termination for convenience. Customer must continue to pay under the terms of the selected Plan or Package during such period.
11.4 Customer may terminate the selected Plan or Package for any reason or for no reason upon ninety (90) days prior written notice to FotoIN unless otherwise specified under the selected Plan or Package or agreed by the Parties in writing.
11.5 Section 1, Section 3.04, Section 5, Section 7, Section 8, Section 9, Section 10, Section 11 and Section 13 will survive any termination of these Terms the selected Plan or Package. Except as otherwise expressly provided in these Terms and selected Plan or Package, FotoIN shall turn over to Customer all work in progress and any other materials provided by Customer to FotoIN under the selected Plan or Package and these Terms, promptly following termination or expiration. Neither party shall be liable to the other for damages of any sort resulting solely from such party terminating the selected Plan or Package in accordance with its terms (except for any termination fee expressly set forth in the selected Plan or Package).
11.6 The rights and remedies given to the Parties under this Section 12 are in addition to any other rights and/or remedies that the Parties may have under the circumstances, all of which are expressly stated.
12.1 Neither Party shall represent itself as the agent or legal representative of the other for any purpose whatsoever, and neither party shall have the right to create or assume for the other any obligation of any kind. These Terms shall not create or be deemed to create an agency, partnership, franchise, employment relationship or joint venture between the Parties. Each Party’s employees who perform services related to these Terms and the selected Plan or Package shall remain under the exclusive direction and control of their respective employer and shall receive such salaries, compensation and benefits as their respective employer may from time to time determine. Each Party shall have full and sole responsibility for its employees who perform any service related to the selected Plan or Package with regard to compliance with all applicable laws, rules and regulations governing such party relating to employment, labor, wages, benefits, taxes and other matters affecting its employees.
12.2 Any notice required or permitted to be given under these Terms and selected Plan or Package shall be made in writing and shall be deemed to have been given or made if it is in writing and is: (i) delivered in person, (ii) sent by same day or overnight courier, or (iii) delivered by e-mail. Notices will be deemed effective on the date of delivery in the case of personal delivery, or one business day after deposit with an overnight courier, or on the date of dispatch in the case of notification by e-mail. The parties’ addresses for purposes of notice shall be established during the registration process.
12.3 These Terms and the selected Plan or Package shall be construed, enforced, performed and in all respects governed by and in accordance with the laws in the State of Georgia. In any action or suit to enforce any right or remedy under the selected Plan or Package the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.
12.4 In the event any provision of these Terms is rendered null, void or otherwise ineffective, then (i) the parties agree to negotiate in good faith an acceptable alternative provision which reflects as closely as possible the intent of the unenforceable provision and (ii) notwithstanding, and regardless of whether the parties reach agreement after the good faith negotiations described in clause (i) immediately above, the validity, legality and enforceability of the remaining provisions of these Terms shall not in any way be affected or impaired thereby and shall remain in full force and effect. Section and all other headings used herein are provided for convenience only and are not to be given any legal effect or considered in interpreting any provision of these Terms. No provision of these Terms shall be interpreted against any party because such party or its legal representative drafted such provision.
12.5 Neither Party may transfer, assign or sublicense the FotoIN Services either in whole or in part without the prior written consent of the other party, except that the FotoIN Service may be assigned in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of a Party’s assets, provided that the Party has notified such other Party within thirty (30) days subsequent to the effective date of such event. Any attempted assignment or delegation without such consent will be void. These Terms will bind and inure to the benefit of each Party’s successors and permitted assigns. Neither Party will unreasonably withhold or delay its consent to a requested transfer, assignment or sublicense. Subject to the provisions of this Section, these Terms shall be binding upon and inure to the benefit of each party and their respective successors and assigns.
12.6 All rights and obligations of the parties hereunder are personal to them. Except as otherwise specifically stated herein, these Terms are not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.
12.7 Customer agrees to observe and comply with all applicable statutes, laws, rules, regulations, terms of service, acceptable use policies and requirements in connection with the use of the FotoIN Services and in performing its obligations under the selected Plan or Package.
12.8 No waiver of any breach of any provision of these Terms shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof or thereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
12.9 FotoIN shall not be liable for any default or delay in the performance of its obligations under these Terms if and to the extent such default or delay is caused, directly or indirectly, by (i) fire, flood, earthquake, elements of nature or acts of God, (ii) acts of vandalism or terrorism (electronic or otherwise), (iii) riots, civil disorders or revolutions, (iv) strike or other significant labor disruption, or (v) nonperformance by a third party or any other cause beyond the reasonable control of FotoIN, including without limitation failures or fluctuations in telecommunications Services, lines, or other equipment (each of such events being referred to herein as a “Force Majeure Event”). If a Force Majeure Event occurs, FotoIN shall be excused from further performance or observance of the obligations so affected for as long as the Force Majeure Event prevails. FotoIN shall notify Customer by telephone as soon as practicable regarding the occurrence and, if known, anticipated duration of any Force Majeure Event.
12.10 These Terms contains the entire agreement of the parties with respect to the premises, and may not be modified or amended except by a written instrument executed by the party sought to be charged or bound thereby.