Terms & Service
Effective Date: February 18, 2026
Welcome to the Terms of Service (the “Terms” or “Agreement”) for the website (the “Site”) and mobile application (the “App”) and application programming interface (the “API”) operated by Phota Labs, Inc. ("Phota Labs,” “we,” “us,” or “our”). The Site, App, API, and any content, tools, features, and/or functionality offered on or through the Site, App, or API are collectively referred to as the “Services”.
These Terms govern your access to and use of the Services. If you are accessing the Services through our API as a developer or business user, additional API-specific terms located at photalabs.com/api-terms-of-service also apply to your use. Please read these Terms carefully, as they include important information about your rights and responsibilities. By accessing and/or using the Services, you are agreeing to these Terms. If you do not understand or agree to these Terms, please do not use the Services.
Phota Labs may update these Terms from time to time. When these changes are made, Phota Labs will make a new copy of the Terms available at photalabs.com/terms-of-service. If you keep using the Services after we update these Terms, we will treat your continued use as your agreement to the changes.
For purposes of these Terms, “you” and “your” means the person or entity using the Services. “Party” or “Parties” refers to one or both of the parties to this agreement, respectively.
DISPUTES ABOUT THESE TERMS AND THE SERVICES ARE SUBJECT TO BINDING ARBITRATION AS SET FORTH IN THE “MANDATORY ARBITRATION AND CLASS ACTION WAIVER” SECTION BELOW.
- USING THE SERVICES
- Eligibility and Age Requirements. To use the Services, you must be at least thirteen (13) years of age and have the legal capacity to enter into these Terms. If you are between the ages of thirteen (13) and seventeen (17) (inclusive), you may only use the Services with the prior express consent of your parent or legal guardian. Your parent or legal guardian must: (i) review and agree to these Terms on your behalf; (ii) review and consent to our Privacy Policy, including our collection and processing of biometric data, geolocation data, and other sensitive information as described herein; and (iii) complete our parental consent verification process, which may include providing verifiable contact information, credit card verification, or signed consent documentation. By creating an account, you affirmatively represent and warrant that you meet the age requirements set forth herein and that all information you provide regarding your age is accurate and complete.
- Age Verification. Phota Labs reserves the right to request proof of age or parental consent at any time, including through government-issued identification, credit card verification, or other reasonable means. Failure to provide requested verification within ten (10) business days of such request may result in immediate account suspension or termination.
- Parental Rights. Parents or legal guardians of users under eighteen (18) years of age may contact us at support@photalabs.com to: (i) review the personal information collected from their child; (ii) request deletion of their child's personal information; (iii) refuse further collection or use of their child's information; or (iv) revoke consent previously provided.
- Account Suspension for Minors. We reserve the right to immediately suspend or terminate any account if we have reason to believe the user does not meet the age requirements set forth herein, has provided false information regarding their age, or (for users ages thirteen (13) to seventeen (17)) has not obtained proper parental consent. Upon such suspension or termination, we will delete all associated personal data, including photos, biometric data, trained models, and any other information collected from that user, within thirty (30) days of such suspension or termination. We do not knowingly collect personal information from individuals under the age of thirteen (13). If we become aware that a user is under thirteen (13), we will promptly terminate the account and delete all associated personal data.
- The Services. We provide personalized visual AI models that automatically transform users’ photos. Our Services enhance and edit photos into better representations of the authentic moments and generate new photos based on your inputs. All profiles and personal models are created automatically. The Services may be accessed via API, the App, or the Site.
Depending on how you access the Services, you may grant Phot Labs access to your camera roll (mobile app) or manually upload photos (web app or API). Our Services will automatically scan and process all photos you make available, including their content and associated metadata including, without limitation, precise geolocation data, timestamps, device information, and other technical data. We may analyze this information to: (i) identify important people, pets, and subjects in your photos; (ii) determine which photos are suitable for transformation or enhancement; (iii) train personalized machine learning models specific to the subjects identified in your photos; (iv) extract biometric identifiers and create unique digital representations of individuals and subjects appearing in your photos; and (v) generate inferences about the content, context, and characteristics of your photos and the subjects depicted therein. You understand and acknowledge that this processing occurs automatically across your accessible camera roll and is necessary to provide the Services. While the trained models and inferences are used exclusively for your account, the scope of our analysis extends to all accessible photos in order to provide the personalized AI capabilities that define our Services.
The Services may produce enhanced images, photo transformations, or other outputs in response to your input. These outputs are generated by automated systems and are not reviewed by a human prior to delivery. You understand and agree that the outputs may be inaccurate, incomplete, biased, or otherwise flawed, and should not be solely relied upon without independent verification. You assume all risk associated with your use of any AI Output. Phota Labs’ models and functionalities may evolve over time through updates or retraining. AI Output (defined below) may vary between sessions or versions. You acknowledge and agree that Phota Labs reserves the right to update, modify, or discontinue certain features at any time without liability.
The Services utilize third-party artificial intelligence services, including Google Gemini and OpenAI, to provide certain functionality. When you use the Services, your photos and data may be processed by these third-party providers in accordance with their respective terms of service and privacy policies. - Access Platforms. You may access and use the Services through: (i) our website at https://photalabs.com/; (ii) our mobile application, as available on the Apple App Store (the “iOS App”); or (iii) our API (as available). These Terms, our Privacy Policy, and the API Terms of Use (as applicable) apply to your use of the Services. Your use of the App may also be subject to additional terms imposed by the platform provider (e.g., Apple), including their respective terms of service and usage policies. In the event of any conflict between these Terms and the mandatory terms required by the applicable platform provider, such platform terms will control solely to the extent required.
- Use. We hereby permit you to use the Services for your personal use, provided that you comply with these Terms. If any software, content, or other materials owned or controlled by us are distributed to you as part of your use of the Services, we hereby grant you a limited, personal, non-assignable, non-sublicensable, non-transferable, and non-exclusive right and license to access and display such software, content, and materials provided to you as part of the Services and right to download the App onto your applicable device for the sole purpose of enabling you to use the Services as permitted by these Terms. You agree to use the Services responsibly and in compliance with applicable laws, regulations, and ethical standards. Phota Labs may monitor usage patterns to prevent abuse and may suspend or terminate access in its sole discretion.
- Apple App Store. If you access or download the App from the Apple App Store, the following additional terms apply: (i) these Terms are between you and Phota Labs only; Apple Inc. (“Apple”) is not a party and has no responsibility for the App or its content; (ii) you are granted a non-transferable license to use the App on any Apple-branded device that you own or control, in accordance with the App Store Terms of Service; (iii) Apple has no obligation to provide maintenance or support for the App; (iv) in the event of a failure to conform to any applicable warranty, you may notify Apple, and Apple may refund the purchase price (if any), but Apple has no further warranty obligations; (v) Phota Labs is solely responsible for all claims relating to the App, including product liability, failure to comply with legal or regulatory requirements, consumer protection, privacy, and intellectual property infringement; and (vi) you acknowledge that Apple and its subsidiaries are third-party beneficiaries of these Terms and may enforce them as such.1.10 Restrictions.
- Mobile Device Requirements and Platform Terms. You are responsible for providing the mobile device, wireless service plan, internet access, and other equipment necessary to download, install, and use the App. We do not guarantee that the App will be available in any specific geographic location or on all devices. You may receive push notifications, SMS messages, or other alerts through the App or the Services. You control these through your device settings or as described in the message. You are solely responsible for any fees, costs, or expenses incurred through your use of the App.1.9 Apple App Store.
- Restrictions. You agree not to, and will not permit others to do any of the following: (i) copy our App, Site, or Services or create similar versions based on the Services; (ii) share access to the Services with any third party without our permission; (iii) use the Services on behalf of any third party except as expressly permitted by us; (iv) incorporate the Services into any other software, product, or service offering; (v) interfere with or circumvent any security, performance, or usage-limiting features of the Services; (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, or logic of the Services, except to the limited extent that such activities are expressly permitted by applicable law notwithstanding this limitation, and then only upon prior written notice to Phota Labs; (vii) remove, obscure, or alter any proprietary notices, disclaimers, or branding appearing in the Services; (viii) use the Services for competitive analysis or to develop a competing product or service; (ix) use the Services for or submit prompts designed to generate illegal, harassing, bullying, unethical, disruptive, or lewd, obscene, violent, harmful, threatening, or criminal outputs or purposes; (x) encourage or assist any third party in any of the foregoing activities; or (xi) infringe or violate another party’s intellectual property rights on the application or through use of the Services.
- YOUR CONTENT AND ACCOUNTS
- Privacy Protection. Our Privacy Policy, available at photalabs.com/privacy-policy describes how we collect, use, and protect your personal information. By using the Services, you agree to the practices described in the Privacy Policy.
- Your Content and AI Output. You retain all ownership rights in and to: (i) any data, text, files, prompts, instructions, or other content you submit or upload to the Services (“User Input”); and (ii) any output generated by the Services specifically in response to your User Input (“AI Output”) (collectively, “Your Content”). We do not claim ownership of Your Content.
You acknowledge and agree that by granting access to your camera roll, you authorize Phota Labs to: (i) process the visual content of all accessible photos to identify, analyze, and extract information about people, pets, objects, scenes, and other subjects; (ii) extract and process biometric identifiers from faces and other distinguishing characteristics appearing in your photos; (iii) generate and store unique digital representations of the subjects in your photos; (iv) analyze metadata associated with your photos to understand context and improve personalization; (v) generate inferences and create derived data about your photos, the subjects depicted, your preferences, and usage patterns; and (vi) train and maintain personalized machine learning models using your photos that remain associated with your account. You further acknowledge that our processing of your photos is necessary to provide the core functionality of the Services.
You grant us a limited, non-exclusive license to use, store, reproduce, and process Your Content solely to provide and support the Services, comply with law, and as otherwise described in these Terms. You are solely responsible for Your Content and represent and warrant that you have all necessary rights, consents, and authority to submit Your Content and grant the rights described above. Where your photos contain images of other individuals, you represent and warrant that you have obtained all necessary permissions and consents from those individuals to allow Phota Labs to process their images and biometric information as described in these Terms and in our Privacy Policy. We reserve the right to remove any of Your Content from the Services at our discretion, including where it violates these Terms or applicable law. - Usage Data. Phota Labs may collect and use data relating to your access, interactions, and usage of the Services, including technical logs, performance metrics, device identifiers, system events, and AI interaction metadata (“Usage Data”). Phota Labs owns all rights, title, and interest in and to Usage Data. We may use Usage Data for analytics, troubleshooting, system improvement, and service optimization, provided that it does not include or reveal Your Content in identifiable form.
- Model Training and Data Retention. Phota Labs analyzes your photos to identify important people and pets, then uses those photos to train a small model for each subject in the cloud. The trained models are saved to your account and are used exclusively by you when editing or transforming your photos or to suggest photo edits to you. When we share your photos with third-party LLM providers for analysis purposes, we do so under contractual agreements that prohibit these providers from using your photos to train their own models. However, you acknowledge that transmitting your photos to third-party AI services involves inherent risks, and we cannot guarantee absolute control over data once transmitted to third parties, despite contractual protections. To the fullest extent permitted by applicable law, Phota Labs is not responsible for any unauthorized use, disclosure, or processing of your photos by third-party providers that occurs in violation of our contractual agreements with such providers.
We do not sell or share Your Content, including User Input or AI Output, with third-party model providers for independent training. We do not use Your Content to retrain our models unless you have expressly authorized us to do so. However, we may retain Your Content as needed to deliver the Services, fulfill your requests, maintain service continuity, or comply with legal obligations. Separately, we collect and retain Usage Data, including logs and metadata generated through your use of the Services. As described in Section 2.3, Phota Labs owns all rights in and to Usage Data, which may be used for analytics, performance optimization, and improving the behavior and reliability of our AI systems. Your trained model and any digital representations or identifiers derived from your photos are retained for the duration of your account and for a reasonable period thereafter to allow for account recovery and service continuity. - Sensitive Data Processing. The Services may process data that is considered sensitive under applicable processing laws, such as geolocation data, biometric information, images of children, and inferences about individuals. By using the Services and granting access to your camera roll, you expressly consent to our collection, use, and processing of such sensitive data. You acknowledge that processing of sensitive data is necessary to provide the core personalized AI functionality that defines our Services.
You have the right to withdraw this consent at any time by discontinuing use of the Services and closing your account, though this will not affect the lawfulness of processing conducted prior to withdrawal. You may also opt out of specific sensitive data processing categories (such as biometric data or precise geolocation) by adjusting your permissions within the App settings, though this may limit certain personalized features of the Services. You retain the right to request deletion by contacting us at support@photalabs.com. - Account Registration and Security. To access the Services, you may be required to create an account. You agree to provide accurate, complete, and up-to-date account information, and to keep your login credentials secure. You are solely responsible for activity on your account. Notify us immediately at support@photalabs.com if you suspect unauthorized access to your account. We may suspend or terminate accounts in our sole discretion.
- Account Deletion and Data Removal. You may delete your account at any time by following the instructions within the App or by contacting us at support@photalabs.com. Upon account deletion, we will delete or anonymize your personal data in accordance with our Privacy Policy, subject to any legal retention obligations.
- Third-Party Applications and Integrations. The Services may allow you to connect or use third-party applications, services, or platforms (“Third-Party Integrations”). Your use of any Third-Party Integration is solely governed by the terms and privacy policies of that provider. We do not control, endorse, or assume liability for any Third-Party Integration. Your interactions with such services are at your own risk.
- API Developers and End User Data. If you access the Services through the API as a developer or business user, you acknowledge that you are responsible for obtaining all necessary rights, consents, and permissions from your end users to submit their data to the Services. You must provide your end users with clear notice that their data will be processed by Phota Labs and our third-party service providers (including Google Gemini API and OpenAI API). Your use of the API is governed by our API Terms of Use, which include additional obligations regarding end user consents, data handling, and privacy disclosures.
- INTELLECTUAL PROPERTY
- Phota Labs Intellectual Property. These Terms grant you a limited right to access and use the Services as provided. Except for rights explicitly granted to you in these Terms, Phota Labs and its licensors retain all rights, title, and interest in and to the Services, including all related software, models, algorithms, user interfaces, documentation, and proprietary technologies. You do not acquire any ownership interest or license in the Services or any underlying system, model, or architecture, whether by implication, estoppel, or otherwise. Nothing in these Terms grants you any rights to access or use the source code, model weights, training data, or internal logic of any component of the Services.
- Feedback. We welcome any suggestions, ideas, improvements, or recommendations provided by you relating to Phota Labs, our Services, or the functionality of our Services (“Feedback”). By submitting any Feedback, you agree that we may use such Feedback without restriction. You hereby assign to us all rights, title, and interest in and to any feedback you submit. Where assignment is not permitted by law, you grant us a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, sublicensable, and transferable license to use, reproduce, modify, distribute, and incorporate your Feedback into the Services or other products without compensation or attribution. We are under no obligation to use or act on any Feedback.
- DISCLAIMER OF WARRANTIES
- Disclaimer of Warranties. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PHOTA LABS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR QUIET ENJOYMENT.
THE SERVICES USE GENERATIVE ARTIFICIAL INTELLIGENCE TO PRODUCE PHOTO TRANSFORMATIONS, ENHANCEMENTS, AND OUTPUTS BASED ON USER INPUT. YOU UNDERSTAND AND AGREE THAT: (I) SUCH OUTPUTS MAY BE INACCURATE, INCOMPLETE, OFFENSIVE, OR OTHERWISE UNRELIABLE; (II) OUTPUTS ARE GENERATED AUTOMATICALLY AND ARE NOT REVIEWED OR VERIFIED BY A HUMAN; (III) PHOTA LABS MAKES NO REPRESENTATIONS OR GUARANTEES REGARDING THE LEGALITY, APPROPRIATENESS, ORIGINALITY, OR NON-INFRINGEMENT OF ANY AI-GENERATED OUTPUT; AND (IV) YOU USE SUCH OUTPUTS ENTIRELY AT YOUR OWN RISK.
YOU ACKNOWLEDGE THAT NO INFORMATION OR OUTPUT PROVIDED BY THE SERVICES CONSTITUTES LEGAL, MEDICAL, FINANCIAL, OR OTHER PROFESSIONAL ADVICE. PHOTA LABS DOES NOT WARRANT THAT THE SERVICES OR AI OUTPUT WILL BE ERROR-FREE, RELIABLE, OR SUITABLE FOR ANY PARTICULAR PURPOSE, AND YOU ARE SOLELY RESPONSIBLE FOR EVALUATING ANY OUTPUT BEFORE USING IT IN ANY SETTING.
PHOTA LABS MAY MODIFY, SUSPEND, OR UPDATE THE SERVICES, INCLUDING THE UNDERLYING AI MODELS, AT ANY TIME WITHOUT NOTICE. YOU ACKNOWLEDGE THAT RESULTS MAY VARY OVER TIME AND ACROSS SESSIONS.
YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES NOT EXPRESSLY SET FORTH IN THESE TERMS.
- Disclaimer of Warranties. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PHOTA LABS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR QUIET ENJOYMENT.
- PAYMENT TERMS
- Payment Authorization. You acknowledge and agree that all the payment information you provide to Phota Labs is accurate, current, and complete. You represent and warrant that you have the legal right to use the payment method you provide to us or to our payment processor.
You agree to pay the price of subscription plus all applicable taxes (the “Full Payment Amount”) and authorize us or our payment processor to charge your payment method for the Full Payment Amount on a recurring basis (monthly or annually, as applicable) in accordance with your selected subscription plan. - Authorized Payment Methods. You may use any payment method accepted by Phota Labs as listed on the Services. We will collect your payment information in order to carry out collection of payment. We may utilize third party payment processors to process payments on our behalf. We do not guarantee the availability of any specific method at any given time and may add, suspend, or remove payment methods at its discretion.
- Refunds and Consumer Rights. Except as required by applicable law or as otherwise stated in these Terms, all Full Payment Amounts are final and non-refundable. We are not responsible for providing or processing refunds unless required by law. Notwithstanding the foregoing, certain jurisdictions (including California and New York) may provide consumer rights that apply to you. These Terms do not limit or waive any non-waivable rights you may have under such laws.
- Payment Processing. We may use a third-party payment processor such as Stripe, Inc. (“Stripe”) or Apple’s App Store subscription to provide payment processing services. By submitting payment information through the Services, you agree to be bound by the applicable payment processor’s service agreements, as updated from time to time. You authorize us to share the information you provide to us with our payment processor as necessary to facilitate payments, comply with applicable law, and operate the Services. The payment processor may collect and process personal data in accordance with its own privacy policy. We do not control and are not responsible for the payment processor’s handling of your information. Your access to payment-enabled features may be suspended or terminated if you violate the payment processor’s services agreement or if the payment provider declines to process a transaction. The third-party payment processors are solely responsible for the performance and security of its payment services, and any disputes related to those services must be resolved directly with the payment processor. In the event of any conflict between these Terms and the payment processor’s services agreement with respect to payment processing, the applicable payment processor’s services agreement will control.
- Free and Beta Services. If you receive any Services free of charge (e.g., trial or zero dollar proof of concept) or released as beta, pilot, limited release, non-production, evaluation, or through platform-specific testing programs (“Beta Features”), you acknowledge and accept that such Services are provided “AS-IS”, without any representations, warranties, support, maintenance, or other obligation of any kind from Phota Labs. Beta Features are experimental in nature and may contain errors, defects, or other issues that could cause system failures or data loss. You acknowledge that Beta Features are intended for testing purposes and may not perform at the level of a commercially available service. Phota Labs may provide Beta Features to different categories of users (including invited testers, general beta participants, or limited release groups) and may apply different terms, duration limits, or access restrictions to each category in its sole discretion. Unless otherwise mutually agreed in writing or specified in a separate beta testing agreement, beta access may be provided for a limited duration, and Phota Labs may terminate your access to, or use of, a free Service or a Beta Feature at any time, which may include permanent deletion of Your Content. By participating in any beta testing program, you agree to provide Feedback regarding your experience, including reporting bugs, errors, and performance issues, in accordance with Section 3.2 of these Terms. Your use of Beta Features through third-party platforms is also subject to the applicable platform provider's terms and policies.
- Payment Authorization. You acknowledge and agree that all the payment information you provide to Phota Labs is accurate, current, and complete. You represent and warrant that you have the legal right to use the payment method you provide to us or to our payment processor.
- INDEMNIFICATION
- Indemnification. You agree to indemnify, defend, and hold harmless Phota Labs, its affiliates, and each of their respective officers, directors, employees, contractors, agents, licensors, and representatives from and against any and all claims, demands, actions, proceedings, investigations, liabilities, damages, losses, costs, and expenses (including reasonable attorneys’ fees and penalties imposed by a governmental or regulatory authority) arising out of or relating to: (i) your breach or violation of these Terms; (ii) your use or misuse of the Services, including reliance on or distribution of AI-generated output; (iii) any User Input or other content you submit, upload, or provide through the Services, including any claim that such content infringes, misappropriates, or violates the intellectual property, privacy, or other rights of any third party; (iv) your violation of any applicable law or regulation in connection with your use of the Services; (v) your use of the Services to generate, store, or disseminate prohibited, harmful, or unlawful content (including false, deceptive, defamatory, infringing, harassing, or unsafe material); or (vi) your use of any third-party integrations, services, or applications accessed through the Services. Phota Labs reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which case you agree to cooperate fully with our defense.
- LIMITATION OF LIABILITY
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PHOTA LABS, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, OR REPRESENTATIVES BE LIABLE: (I) FOR ANY AMOUNT EXCEEDING ONE HUNDRED DOLLARS ($100) IN THE AGGREGATE FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE SERVICES; OR (II) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOSS OF GOODWILL, LOSS OF DATA, OR DIMINUTION IN VALUE, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF PHOTA LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THE REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS, SO THE ABOVE MAY NOT APPLY TO YOU IN FULL.
- Essential Basis for the Bargain. YOU ACKNOWLEDGE AND AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN YOU AND PHOTA LABS AND THAT PHOTA LABS WOULD NOT PROVIDE THE SERVICES TO YOU WITHOUT YOUR AGREEMENT TO THESE LIMITATIONS.
- MANDATORY ARBITRATION AND CLASS ACTION WAIVER
- Arbitration. If a dispute arises concerning the interpretation of these Terms or the performance of either Party under them, the Parties agree to first attempt resolution through good faith executive-level discussions. Either Party may initiate this process by delivering a written Notice of Dispute. If the Parties are unable to resolve the dispute within thirty (30) days, the matter shall be resolved by binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association, as modified by this section, and in accordance with the Federal Arbitration Act (Title 9 of the United States Code).
The arbitration shall be administered by the AAA and decided by a panel of one (1) arbitrator. The legal seat of arbitration shall be San Jose, California, but unless the Parties agree otherwise, the arbitration proceedings (including hearings) shall be conducted remotely by video conference or other virtual means. The arbitration must be initiated within a reasonable time after the dispute arises, and all statutes of limitation that would apply in a judicial proceeding shall apply. The arbitrators’ decision shall be final and binding, and judgment may be entered thereon in any court of competent jurisdiction. No arbitration may include any person or entity not a party to this Agreement without both Parties’ written consent. Each Party waives any right to appeal, review, or vacate the award, except as permitted under the Federal Arbitration Act.
The prevailing Party, as determined by the arbitrators, shall be entitled to recover all costs and fees, including reasonable attorneys’ fees, arbitration and administrative fees, and out-of-pocket expenses. - Class Action Waiver. YOU AND PHOTA LABS AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF THIS SPECIFIC PROVISION IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS ARBITRATION PROVISION SHALL BE NULL AND VOID.
- Arbitration. If a dispute arises concerning the interpretation of these Terms or the performance of either Party under them, the Parties agree to first attempt resolution through good faith executive-level discussions. Either Party may initiate this process by delivering a written Notice of Dispute. If the Parties are unable to resolve the dispute within thirty (30) days, the matter shall be resolved by binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association, as modified by this section, and in accordance with the Federal Arbitration Act (Title 9 of the United States Code).
- MISCELLANEOUS
- Authority. Each party represents that it has full authority to enter into these Terms and bind itself to its terms.
- Governing Law and Jurisdiction. These Terms will be governed by and construed in accordance with the laws of California, without regard to its conflict of laws principles. You and Phota Labs agree that any legal action or proceeding arising under or related in any way to these Terms will be brought in the state or federal courts of appropriate jurisdiction located in San Jose, California and venue will be proper in that court. Notwithstanding the foregoing, either Party may seek injunctive or other equitable relief in any court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of intellectual property rights or confidential information.
- Amendment; No Waiver. Phota Labs may update these Terms from time to time by posting a revised version on the Site or App; such updates shall be effective upon posting. Except for such unilateral updates, these Terms may not be amended except in a signed writing executed by authorized representatives of both Parties. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Force Majeure. Except for payment obligations, neither Party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage not caused by the obligated party; government restrictions; pandemic; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
- Compliance with Laws. We will comply with all applicable U.S. state and federal laws and international laws in our operation and our provision of the Services. We reserve the right to disclose any information as necessary to comply with legal obligations, including laws, regulations, legal processes, or government requests. You agree not to export, re-export, or otherwise transfer access to the Services to any country, entity, or individual prohibited by applicable export control laws or sanctions programs.
- Severability. If any provision of these Terms is found to be invalid or unenforceable by a court of competent jurisdiction, that provision will be replaced by a valid and enforceable provision that most closely reflects the intent of the original, and the remainder of these Terms will remain in full force and effect.
- Notices. If you need to contact us for legal purposes, you may do so by email at legal@photalabs.com or through any contact method listed on our website or in our application. We may provide you with notices via email, SMS messaging, in-app messaging, or through any contact information associated with your account. You are responsible for keeping your contact details up to date.
- Entire Agreement. These Terms, including our Privacy Policy and (if applicable) our API Terms of Use, constitute the entire agreement between you and Phota Labs regarding the Services. It supersedes all other prior and contemporaneous proposals, agreements, or understandings, whether oral, written, or electronic. We expressly object to and reject any additional or conflicting terms you propose. Our obligations are not contingent upon the delivery of any future functionality or features unless expressly agreed to in writing.
- Assignment. You may not assign or transfer these Terms, in whole or in part, without Phota Labs’s prior written consent, and any attempt to do so without consent will be null and void. We may assign or transfer these Terms without restriction, including in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets. Subject to the foregoing, these Terms will bind and inure to the benefit of the Parties and their respective permitted successors and assigns.
- No Third Party Beneficiaries. Except as expressly provided in these Terms, including with respect to Apple Inc. and its subsidiaries as third-party beneficiaries of certain provisions related to the iOS App, nothing in this Agreement is intended to or will confer upon any third party any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
- Contract for Services. These Terms are for the provision of Services and not a sale of goods. The Uniform Commercial Code (UCC), the Uniform Computer Information Transactions Act (UCITA), and the United Nations Convention on Contracts for the International Sale of Goods do not apply to these Terms.
- Survival. Any provisions that by their nature should survive termination or expiration of these Terms, including but not limited to terms relating to payment obligations, use of the Services, confidentiality, intellectual property, disclaimers, limitations of liability, indemnification, and miscellaneous shall survive.
- Termination. Either Party may terminate these Terms at any time by providing written notice to the other Party. Notwithstanding the foregoing, Phota Labs may terminate or suspend your access to the Services immediately and without prior notice if you breach these Terms or if continued provision of the Services becomes impracticable or unlawful. Upon termination: (i) your right to access and use the Services will immediately cease; (ii) you remain liable for any fees or charges incurred prior to termination; and (iii) Sections 2.3, 2.4, 2.5, 3, 4, 6, 7, 8, and 9 shall survive termination.
- Interpretation. The headings used in these Terms are for convenience only and will not affect the interpretation of any provision. The words “including,” “such as,” and similar terms are to be construed without limitation. These Terms will not be construed against either Party as the drafter.
