Blink Incorporated : Terms of Service
Last Updated: December 1, 2019
These terms of service constitute a legally binding agreement (the “Agreement”) between you and Blink Incorporated (“Blink,” “we,” “us” or “our”) governing your use of the Blink application, website, and technology platform (collectively, the “Blink Platform”).
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND BLINK HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE DISPUTE RESOLUTION AND ARBITRATION AGREEMENT SECTION BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST BLINK TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. AS A CUSTOMER, PHOTOGRAPHER OR PHOTOGRAPHER APPLICANT, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN THE DISPUTE RESOLUTION AND ARBITRATION AGREEMENT SECTION BELOW.
By entering into this Agreement, and/or by using or accessing the Blink Platform you expressly acknowledge that you have read, understand and agree to this Agreement (including the dispute resolution and arbitration provisions in the DISPUTE RESOLUTION AND ARBITRATION AGREEMENT Section below) and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE BLINK PLATFORM AND MAY NOT RECEIVE SERVICES. If you use the services of Blink or its affiliates in another country, by using the Blink Platform in that country you agree to be subject to Blink’s terms of service for that country.
1. The Blink Platform
The Blink Platform provides a marketplace where persons who seek photographic photos for certain life events and activities (“Customers”) can be matched and connected with persons providing photography and videography services in location(s) of their choosing (“Photographers”). Photographers and Customers are collectively referred to herein as “Users,” and each User shall create a User account that enables access to the Blink Platform. Each person may only create one User account, and Blink reserves the right to shut down any additional accounts. As a User, you authorize Blink to match and connect you with a Photographer or Customer based on factors such as your location, type of shoot, photographic expertise, your destination, user preferences, and platform efficiency, and to cancel an existing match and connection based on the same considerations. For purposes of this Agreement, the photographic services provided by Photographers to Customers that are matched and connected through the Platform shall be referred to collectively as the “Services”. Any decision by a User to offer or accept Services is a decision made in such User’s sole discretion. Each photographic Service provided by a Photographer to a Customer shall constitute a separate agreement between such persons.
2. Modification to the Agreement
In the event Blink modifies the terms and conditions of this Agreement, such modifications shall be binding on you and may be modified by us at any time without prior notice. All such modifications will be effective upon posting on the Blink Website, and any use by you of the Blink Platform after the posting of any such modification will constitute your agreement to that modification. We will also update the “Last Updated Date” at the top of this Agreement or on the Blink Platform. Blink reserves the right to modify any information referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of the Blink Platform or Services after any such changes shall constitute your consent to such changes. Unless material changes are made to the arbitration provisions herein, you agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).
The Blink Platform may only be used by individuals who can form legally binding contracts under applicable law. The Blink Platform is not available to children (persons under the age of 18) or Users who have had their User account temporarily or permanently deactivated. By becoming a User, you represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement. A person under 18 can use a parent’s account with the permission of the parent and the parent has read and agrees to this Agreement on your behalf. You may not allow other persons to use your User account, and you agree that you are the sole authorized User of your account.
As a Customer, you understand that request or use of the Services may result in charges to you (“Charges”). Charges include Shoot Fees, photo(s) purchased and other applicable fees and charges, if any, as set forth in the Help Center and on your market’s Blink Cities page, plus any tips to the Photographer that you elect to pay. Blink has the authority and reserves the right to determine and modify pricing by posting applicable pricing terms in the Help Center or to your market’s Blink Cities page or quoting you a price for a specific shoot at the time you make a request. Pricing may vary based on the type of Service you request (e.g., Blink BLACK, Blink GREY, Blink WHITE) as described on your market’s Blink Cities page. You are responsible for reviewing the applicable Blink Cities page or price quote within the Blink app and shall be responsible for all Charges incurred under your User account regardless of your awareness of such Charges or the amounts thereof.
Fees and Other Charges.
- Shoot Fee. You will be charged a “Shoot Fee” that is based upon time requested and booked for each shoot as set forth in the Help Center or on the applicable Blink Cities page.
- Photo(s) Purchased. Photos generated during shoots can be purchased for a set amount per photo as set forth in the Help Center or on the applicable Blink Cities page. Buy All packages are discounted prices for buying all of the photos from your shoot. Photo shoots longer than 1.5 hours are Buy All only and single photo purchasing is not available. Please refer to the applicable Blink Cities page for pricing in your city market.
- Prime Time. At times of high demand for Services (“Prime Time”) you acknowledge that Charges may increase substantially. For all shoots, we will use reasonable efforts to inform you of any Prime Time multipliers in effect at the time of your request.
- Cancellation Fee. After requesting a shoot, you may cancel it through the app with 24 hours notice. If cancelled outside the 24 hour window, you will be charged the full amount of scheduled shoot. Outside the 24 hour window, you may change or reschedule at any time. You may also be charged if you fail to show up after booking a shoot. Please check out our Help Center to learn more about Blink’s Cancellation Policy, including applicable fees.
- Other Charges. Other fees and surcharges may apply to your shoot, including: event or setup fees as determined by Blink or its marketing partners, state or local fees, and processing fees for split payments. In addition, where required by law Blink will collect applicable taxes. See your market’s Blink Cities page for details on other Charges that may apply to your shoot.
- Tips. Following a shoot, you may elect to tip your Photographer in cash or through the Blink application. Any tips will be provided entirely to the applicable Photographer.
- Facilitation of Charges. All Charges are facilitated through a third-party payment processing service (currently Stripe, Inc.). Blink may replace its third-party payment processing services without notice to you. Charges shall only be made through the Blink Platform. With the exception of tips, cash payments are strictly prohibited. Blink may, in its sole discretion, utilize Stripe Express Pay, in which case you will be charged a fee for this Express Pay service. Your payment of Charges to Blink satisfies your payment obligation for your use of the Blink Platform and Services.
- No Refunds. All Charges are non-refundable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of the Blink Platform, any disruption to the Blink Platform or Services, or any other reason whatsoever.
- Discount Code and Gift Cards. You may receive a discount code and/or gift card that you can apply toward payment of certain Charges to purchase a photo shoot and/or photos. Discount codes and gift cards are only valid for use on the Blink Platform, and are not transferable or redeemable for cash except as required by law. Discount codes and gift cards cannot be combined, and if the cost of your shoot exceeds the applicable credit or discount value we will charge your payment method on file for the outstanding cost of the shoot and/or photos. For certain Charges, Blink may deduct the amount attributable to the Shoot Fee, Photos purchased or Other Charges before application of the discount code or gift card. Additional restrictions on discount codes and gift cards may apply as communicated to you in a relevant promotion or by clicking on the relevant discount code or gift card within the Promotions section of the Blink App.
- Credit Card Authorization. Upon addition of a new payment method or each shoot booking, Blink may seek authorization of your selected payment method to verify the payment method, ensure the shoot cost will be covered, and protect against unauthorized behavior. The authorization is not a charge, however, it may reduce your available credit by the authorization amount until your bank’s next processing cycle. Should the amount of our authorization exceed the total funds on deposit in your account, you may be subject to overdraft of NSF charges by the bank issuing your debit or prepaid card. We cannot be held responsible for these charges and are unable to assist you in recovering them from your issuing bank.
If you are a Photographer, you will receive payment for your provision of Services pursuant to the terms of the Photographer Addendum, which is integrated herein and shall form part of this Agreement between you and Blink. The Photographer Addendum will be available in the Photographer dashboard when you log into your account.
6. Blink Communications
By entering into this Agreement or using the Blink Platform, you agree to receive communications from us, including via email, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Blink, its affiliated companies and/or Photographers, may include but are not limited to: operational communications concerning your User account or use of the Blink Platform or Services, updates concerning new and existing features on the Blink Platform, communications concerning promotions run by us or our third-party partners, and news concerning Blink and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.
IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, YOU MAY TEXT “STOP” FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE BLINK PLATFORM OR THE SERVICES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE BLINK PLATFORM OR THE SERVICES.
7. Your Information
You shall promptly notify Blink in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of your Information. You shall use best efforts to protect your Information from unauthorized disclosure, transfer or use.
You may be able to create or log-in to your Blink User account through online accounts you may have with third party social networking sites (each such account, an “SNS Account”). By connecting to Blink through an SNS Account, you understand that Blink may access, store, and make available any SNS Account content according to the permission settings of your SNS Account (e.g., friends, mutual friends, contacts or following/followed lists (the “SNS Content”)). You understand that SNS Content may be available on and through the Blink Platform to other Users. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered to be your Information.
8. Promotions and Referral Programs
Blink, at its sole discretion, may make available promotions with different features to any Users or prospective Users. These promotions, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with Blink. Blink reserves the right to withhold or deduct credits or benefits obtained through a promotion in the event that Blink determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement.
As part of your User account, Blink may provide you with or allow you to create a “Blink Code,” a unique alphanumeric code for you to distribute to your friends and family (each a “Referred User”) to become new Blink Customers (“Referred Customers”) or Photographers (“Referred Photographers”) in your country. Blink Codes may only be distributed for promotional purposes and must be given away free of charge. You may not sell, trade, or barter your Blink Code. You are prohibited from advertising Blink Codes in any way, including through any of the following: Google, Facebook, Instagram, Twitter, and Craigslist. Blink reserves the right to deactivate or invalidate any Blink Code at any time in Blink’s discretion.
From time to time, Blink may offer you with incentives to refer your friends and family to become new Users of the Blink Platform in your country (the “Referral Program”). These incentives may come in the form of Blink Credits, and Blink may set or change the incentive types, amounts, terms, restrictions, and qualification requirements for any incentives in its sole discretion. Your distribution of Blink Codes and participation in a Referral Program is subject to this Agreement and any additional Referral Program rules.
9. Restricted Activities
With respect to your use of the Blink Platform and your participation in the Services, you agree that you will not:
- impersonate or misrepresent your affiliation with any person or entity;
- stalk, threaten, or promote violent or threatening actions to any person or entity or otherwise harass any person, or carry any weapons;
- violate any law, statute, rule, permit, ordinance or regulation;
- interfere with or disrupt the Blink Platform or the servers or networks connected to the Blink Platform, or use or disclose any Blink confidential or proprietary information, except as otherwise explicitly set forth herein;
- post, upload, publish, submit or transmit Information or interact on the Blink Platform or Services in a manner which is fraudulent, false, misleading, deceptive, libelous, defamatory, abusive, obscene, pornographic, profane, vulgar, offensive, sexually oriented, harassing, gives rise to civil liability or is illegal, or collect or store any personally identifiable information from the Blink Platform or Service from other Users of the Blink Platform or Service without their express written permission;
- use the Blink Platform in any way that infringes, misappropriates or violates any third party’s rights, including: intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy, or use the Blink Platform or Service for any commercial purpose or for the benefit of any third party or in any manner not permitted by this Agreement;
- post, email or otherwise transmit any malicious code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or surreptitiously intercept or expropriate any system, data or personal information;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Blink Platform;
- “frame” or “mirror” any part of the Blink Platform, without our prior written authorization or use meta tags or code or other devices containing any reference to us in order to direct any person to any other web site for any purpose;
- modify, adapt, translate, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Blink Platform or any software used on or for the Blink Platform, or attempt to probe, scan, or test the vulnerability of any Blink system or network or breach any security or authentication measures;
- rent, lease, lend, sell, redistribute, license or sublicense the Blink Platform or access to any portion or feature of the Blink Platform;
- use any engine, software, tool, agent, device, mechanism, robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Blink Platform or its contents, or avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Blink;
- link directly or indirectly to any other web sites, or send any unsolicited or unauthorized advertising, promotional materials, email, junk mail or junk messages, spam, chain letters or other form of solicitation to any person, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing other Users or the Blink Platform;
- transfer or sell your User account, password, Blink Codes and/or identification to any other party;
- discriminate against, defame, abuse, stalk, threaten or otherwise violate the legal rights (such as of privacy and publicity) of any other User of the Blink Platform, or promotes discrimination, bigotry, racism, hatred, or harm against any individual or group, or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation; or
- cause or encourage any third party to engage in any of the restricted activities above.
10. Photographer Representations, Warranties and Agreements
By providing Services as a Photographer on the Blink Platform, you represent, warrant, and agree that:
- You own, or have the legal right to operate, the camera and photographic equipment you use when providing Services, and such camera and photographic equipment is properly maintained and in good operating condition and allows you to perform your duties and provide Services under this Agreement.
- You possess and/or have access to an FTP-enabled camera that has the ability to connect to a wifi network, and access a personal or public hotspot.
- Depending on the level of Service requested for shoot, you will have access to and/or provide appropriate photographic and set equipment for lighting, background and setting including but not limited to flash, lighting, umbrellas, background screen(s), tripods and stands.
- You will not engage in unprofessional, disrespectful, unlawful, fraudulent or reckless behavior while providing Services, permit an unauthorized third party to accompany you while providing Services, provide Services as a Photographer while under the influence of alcohol or drugs, or take action that harms or threatens to harm the health or safety of the Blink Customers, the Blink community or third parties.
- You will not, while providing Services, operate as a public or common Photographer, hand out personal business cards, accept street requests, charge for Shoots or Images (except as expressly provided in this Agreement), demand that a Customer pay in cash, or use a credit card reader, such as a Square Reader, to accept payment or engage in any other activity in a manner that is inconsistent with your obligations under this Agreement.
- You will not attempt to defraud Blink or Customers on the Blink Platform or in connection with your provision of Services. If we suspect that you have engaged in fraudulent activity we may withhold applicable Fees or other payments for the shoot(s) in question.
- You will make reasonable accommodation for Customers and/or for service animals, as required by law.
- You agree that we may obtain information about you, including your criminal history and driving records, and you agree to provide any further necessary authorizations to facilitate our access to such records during the term of the Agreement.
- If you choose to drive a vehicle, you posses a valid driver’s license and are authorized and medically fit to operate a motor vehicle and have all appropriate licenses, approvals and authority in all jurisdictions in which you provide Services.
- You have a valid policy of liability insurance (in coverage amounts consistent with all applicable legal requirements) that names or schedules you for the operation of the vehicle you use to provide Services, if any.
- You will pay all applicable federal, state and local taxes based on your provision of Services and any payments received by you.
- You are free from the control and direction of Blink in connection with the performance of the Services for the Customer, both as a matter of contract and in fact.
- If the work for the Customer is performed in a jurisdiction that requires you to have a business license or business tax registration, you have the required business license or business tax registration.
- You deliver Services to the Customer under your name, rather than under the name of Blink.
- You provide your own camera, photography equipment, tools and supplies to perform the Services.
- You are customarily engaged in an independently established business of the same nature as that involved in the work performed for the Customer.
- You maintain a clientele without any restrictions from Blink and you are free to seek work elsewhere, including through a competing company.
- You set your own hours and terms of work and are free to accept or reject Customers and contracts.
- You set your own rates for services performed, without deduction by Blink.
- You are not penalized in any form for rejecting Customers or contracts. This subparagraph does not apply if you accept a Customer or contract and then fail to fulfill any of its contractual obligations.
- You agree to comply with, and be bound by, all the Restricted Activities listed above.
11. Relationship with Blink
As a Photographer on the Blink Platform, you acknowledge and agree that you and Blink are in a direct business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties. You and Blink expressly agree that (1) this is not an employment agreement and does not create an employment relationship between you and Blink; and (2) no joint venture, franchisor- franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind Blink, and you undertake not to hold yourself out as an employee, agent or authorized representative of Blink.
Blink does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Services, your acts or omissions, or your operation and maintenance of your camera, equipment and vehicle or mode of transportation. You retain the sole right to determine when, where, and for how long you will utilize the Blink Platform. You retain the option to accept or to decline or ignore a Customer’s request for Services via the Blink Platform, or to cancel an accepted request for Services via the Blink Platform, subject to Blink’s then-current cancellation policies. With the exception of any signage required by law or permit/license rules or requirements, Blink shall have no right to require you to: (a) display Blink’s names, logos or colors on your vehicle(s); or (b) wear a uniform or any other clothing displaying Blink’s names, logos or colors. You acknowledge and agree that you have complete discretion to provide Services or otherwise engage in other business or employment activities.
12. Intellectual Property
All intellectual property rights, wherever existing in the world, in the Blink Platform (whether registered or unregistered) shall be owned by Blink absolutely and in their entirety. These rights include patent rights, patent applications and other rights in inventions, statutory invention registrations, and divisions, continuations, continuations-in-part and substitute applications of the foregoing and any extensions, reissues, restorations and reexaminations, software, database rights, compilations and collections of information, copyright (and other rights in works of authorship), design rights, mask works, trademarks, service marks, logos, trade names (and other indicia of origin), all rights in know-how, trade secrets, discoveries and methodologies, algorithms, formulae, domain names, URLs, rights of personality or publicity, moral rights and other similar proprietary trade rights or designations, together with the right to apply for protection of the same (collectively, “Intellectual Property Rights”). All other trademarks, logos, service marks, company or product names set forth in the Blink Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by you to us, through any channel, are non-confidential and shall become the sole property of Blink. Blink shall own exclusive rights, including all Intellectual Property Rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
License to Company Properties
The Blink Platform and the information and content available on the foregoing (collectively, the “Company Properties”) are protected by copyright laws throughout the world. Subject to this Agreement, Blink grants you a limited license to reproduce portions of the Company Properties solely to the extent necessary to use the Services for your personal or internal business purposes on the condition that they shall not be reproduced or copied in any manner whatsoever, in whole or in part, except for your internal use as necessary, and upon the further condition that, as Blink’s sole property, they shall not be used, in whole or in part, for furnishing information to others or for any purpose not specifically authorized in writing signed by Blink. These ownership provisions shall not be superseded by any printed form used in connection with, or arising out of, a sale induced by a proposal or otherwise. Unless otherwise specified by Blink in a separate written license, your right to use any Company Properties is subject to this Agreement. There are no implied licenses granted to you under these terms.
By using the Company Properties, Photographer acknowledges and agrees that Photographer grants Blink, in perpetuity, a world-wide, non-exclusive, unrestricted, transferable, sublicensable license to use, reproduce and monetize, publicly display, publicly perform, and make derivative works of the licensed photos, any and all photos taken, or photos derived therefrom, by or through use of the Services, including all intellectual property and proprietary rights therein (the “Licensed Photos”).
Customer hereby assigns to Blink all right, title, and interest to the Licensed Photos (including all intellectual property and proprietary rights therein), and Customer hereby waives all moral rights, privacy rights, publicity rights, rights of integrity, rights of attribution, and all other rights Customer may have in or related to any of the Licensed Photos (including rights associated with your likeness or image appearing in such photos).
Each of Photographer and Customer hereby acknowledges and agrees that Blink may use, reproduce, distribute, market, monitize, publicly perform, publicly display, make derivative works from, and otherwise exploit such Licensed Photos in any way, and may sublicense such rights to third parties for any purpose, including but not limited to, Blink’s or any third party’s advertising and marketing purposes worldwide in all forms of media whether now known or hereafter developed, without any notice, attribution, or compensation to either Photographer or Customer or their respective transferees, heirs or assigns.
Each of Photographer and Customer hereby releases all claims to any profits that may arise from Blink’s use of any Licensed Photos or photos derived from such photos. Each of Photographer and Customer represents and warrants that he or she has the legal authority to license, grant, assign, waive, and release the foregoing rights. Blink and other Blink logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of Blink in the United States and/or other countries (collectively, the “Blink Marks”). If you provide Services as a Photographer, Blink grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the Blink Marks solely in connection with providing the Services through the Blink Platform (“License”). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without Blink’s prior written permission, which it may withhold in its sole discretion. The Blink Marks may not be used in any manner that is likely to cause confusion or to cause mistake, or to deceive.
You acknowledge that Blink is the owner and licensor of the Blink Marks, including all goodwill associated therewith, and that your use of the Blink Marks will confer no additional interest in or ownership of the Blink Marks in you but rather inures to the benefit of Blink. You agree to use the Blink Marks strictly in accordance with Blink’s Trademark Usage Guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that Blink determines is nonconforming or otherwise unacceptable.
You agree that you will not: (1) create any materials that use the Blink Marks or any derivatives of the Blink Marks as a trademark, service mark, trade name or trade dress, other than as expressly approved by Blink in writing; (2) use the Blink Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the Blink Marks other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair Blink’s rights as owner of the Blink Marks or the legality and/or enforceability of the Blink Marks, including, challenging or opposing Blink’s ownership in the Blink Marks; (4) apply for trademark registration or renewal of trademark registration of any of the Blink Marks, any derivative of the Blink Marks, any combination of the Blink Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the Blink Marks; (5) use the Blink Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
Violation of any provision of this License may result in immediate termination of the License, in Blink’s sole discretion. If you create any materials bearing the Blink Marks (in violation of this Agreement or otherwise), you agree that upon their creation Blink exclusively owns all right, title and interest in and to such materials, including any modifications to the Blink Marks or derivative works based on the Blink Marks. You further agree to assign any interest or right you may have in such materials to Blink, and to provide information and execute any documents as reasonably requested by Blink to enable Blink to formalize such assignment.
Blink respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials on the Blink Platform or Services infringe upon your copyrights, please send the following information to Blink’s Copyright Agent at Blink Incorporated, 109 Town Center Corte Madera, Corte Madera, CA 94925: (1) a description of the copyrighted work that you claim has been infringed, including specific location on the Blink Platform where the material you claim is infringed is located. Include enough information to allow Blink to locate the material, and explain why you think an infringement has taken place; (2) a description of the location where the original or an authorized copy of the copyrighted work exists – for example, the URL (Internet address) where it is posted or the name of the book in which it has been published; (3) your address, telephone number, and e-mail address; (4) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (5) a statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (6) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
THE FOLLOWING DISCLAIMERS ARE MADE ON BEHALF OF BLINK, OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND SHAREHOLDERS.
BLINK AND THE BLINK PLATFORM DO NOT PROVIDE PHOTOGRAPHIC SERVICES, AND NEITHER BLINK NOR THE BLINK PLATFORM IS A PHOTOGRAPHY COMPANY. THE BLINK PLATFORM IS NOT A COMMON PHOTOGRAPHER OR PUBLIC PHOTOGRAPHER. IT IS UP TO THE PHOTOGRAPHER TO DECIDE WHETHER OR NOT TO PROVIDE SERVICES TO A CUSTOMER CONNECTED THROUGH THE BLINK PLATFORM, AND IT IS UP TO THE CUSTOMER TO DECIDE WHETHER OR NOT TO ACCEPT A SHOOT FROM ANY PHOTOGRAPHER CONNECTED THROUGH THE BLINK PLATFORM. WE CANNOT ENSURE THAT A PHOTOGRAPHER OR CUSTOMER WILL COMPLETE AN ARRANGED SERVICE. WE HAVE NO CONTROL OVER THE QUALITY OR SAFETY OF THE PHOTOGRAPHY THAT OCCURS AS A RESULT OF THE SERVICES.
THE BLINK PLATFORM IS PROVIDED ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE DO NOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE BLINK PLATFORM AND/OR THE SERVICES, INCLUDING THE ABILITY TO PROVIDE OR RECEIVE SERVICES AT ANY GIVEN LOCATION OR TIME, OR YOUR SATISFACTION OF THE SERVICES RENDERED BY A PHOTOGRAPHER. TO THE FULLEST EXTENT PERMITTED BY LAW, WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU.
WE DO NOT WARRANT THAT YOUR USE OF THE BLINK PLATFORM OR SERVICES WILL BE ACCURATE, COMPLETE, RELIABLE, CURRENT, SECURE, UNINTERRUPTED, ALWAYS AVAILABLE, OR ERROR- FREE, OR WILL MEET YOUR REQUIREMENTS, THAT ANY DEFECTS IN THE BLINK PLATFORM WILL BE CORRECTED, OR THAT THE BLINK PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DISCLAIM LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, CONNECTIVITY AND AVAILABILITY OF THE BLINK PLATFORM OR SERVICES.
WE CANNOT GUARANTEE THAT EACH CUSTOMER IS WHO HE OR SHE CLAIMS TO BE. PLEASE USE COMMON SENSE WHEN USING THE BLINK PLATFORM AND SERVICES, INCLUDING LOOKING AT THE PHOTOS OF THE PHOTOGRAPHER OR CUSTOMER YOU HAVE MATCHED WITH TO MAKE SURE IT IS THE SAME INDIVIDUAL YOU SEE IN PERSON. PLEASE NOTE THAT THERE ARE ALSO RISKS OF DEALING WITH UNDERAGE PERSONS OR PEOPLE ACTING UNDER FALSE PRETENSE, AND WE DO NOT ACCEPT RESPONSIBILITY OR LIABILITY FOR ANY CONTENT, COMMUNICATION OR OTHER USE OR ACCESS OF THE BLINK PLATFORM BY PERSONS UNDER THE AGE OF 18 IN VIOLATION OF THIS AGREEMENT. WE ENCOURAGE YOU TO COMMUNICATE DIRECTLY WITH EACH POTENTIAL PHOTOGRAPHER OR CUSTOMER PRIOR TO ENGAGING IN AN ARRANGED PHOTOGRAPHY SERVICE.
BLINK IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE BLINK PLATFORM OR SERVICES. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS. WE DO NOT PROCURE INSURANCE FOR, NOR ARE WE RESPONSIBLE FOR, PERSONAL BELONGINGS LEFT BY PHOTOGRAPHERS OR CUSTOMERS. WE HEREBY DISCLAIM AND ASSUME NO LIABILITY FOR ANY ACTS OR OMISSIONS OF OTHER USERS, LOSSES, PERSONAL INJURIES, EMOTIONAL DISTRESS, WRONGFUL DEATH OR PROPERTY DAMAGE WHICH MAY OCCUR DURING A SHOOT OR IN CONNECTION WITH, RELATING TO OR ARISING OUT OF USE OF THE BLINK PLATFORM OR THE SERVICES. BY USING THE BLINK PLATFORM AND PARTICIPATING IN THE SERVICES, YOU AGREE TO ACCEPT ALL SUCH RISKS AND AGREE THAT BLINK IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF USERS ON THE BLINK PLATFORM OR PARTICIPATING IN THE SERVICES.
YOU ARE RESPONSIBLE FOR THE USE OF YOUR USER ACCOUNT AND BLINK EXPRESSLY DISCLAIMS ANY LIABILITY ARISING FROM THE UNAUTHORIZED USE OF YOUR USER ACCOUNT. SHOULD YOU SUSPECT THAT ANY UNAUTHORIZED PARTY MAY BE USING YOUR USER ACCOUNT OR YOU SUSPECT ANY OTHER BREACH OF SECURITY, YOU AGREE TO NOTIFY US IMMEDIATELY.
IT IS POSSIBLE FOR OTHERS TO OBTAIN INFORMATION ABOUT YOU THAT YOU PROVIDE, PUBLISH OR POST TO OR THROUGH THE BLINK PLATFORM (INCLUDING ANY PROFILE INFORMATION YOU PROVIDE), SEND TO OTHER USERS, OR SHARE DURING THE SERVICES, AND TO USE SUCH INFORMATION TO HARASS OR HARM YOU. WE ARE NOT RESPONSIBLE FOR THE USE OF ANY PERSONAL INFORMATION THAT YOU DISCLOSE TO OTHER USERS ON THE BLINK PLATFORM OR THROUGH THE SERVICES. PLEASE CAREFULLY SELECT THE TYPE OF INFORMATION THAT YOU POST ON THE BLINK PLATFORM OR THROUGH THE SERVICES OR RELEASE TO OTHERS. WE DISCLAIM ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF OTHER USERS (INCLUDING UNAUTHORIZED USERS, OR “HACKERS”).
OPINIONS, ADVICE, STATEMENTS, OFFERS, OR OTHER INFORMATION OR CONTENT CONCERNING BLINK OR MADE AVAILABLE THROUGH THE BLINK PLATFORM, BUT NOT DIRECTLY BY US, ARE THOSE OF THEIR RESPECTIVE AUTHORS, AND SHOULD NOT NECESSARILY BE RELIED UPON. SUCH AUTHORS ARE SOLELY RESPONSIBLE FOR SUCH CONTENT. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON INFORMATION OR OTHER CONTENT POSTED BY THIRD PARTIES, WHETHER ON THE BLINK PLATFORM OR OTHERWISE. WE RESERVE THE RIGHT, BUT WE HAVE NO OBLIGATION, TO MONITOR THE MATERIALS POSTED ON THE BLINK PLATFORM AND REMOVE ANY SUCH MATERIAL THAT IN OUR SOLE OPINION VIOLATES, OR IS ALLEGED TO VIOLATE, THE LAW OR THIS AGREEMENT OR WHICH MIGHT BE OFFENSIVE, ILLEGAL, OR THAT MIGHT VIOLATE THE RIGHTS, HARM, OR THREATEN THE SAFETY OF USERS OR OTHERS.
LOCATION DATA PROVIDED BY THE BLINK PLATFORM IS FOR BASIC LOCATION PURPOSES ONLY AND IS NOT INTENDED TO BE RELIED UPON IN SITUATIONS WHERE PRECISE LOCATION INFORMATION IS NEEDED OR WHERE ERRONEOUS, INACCURATE OR INCOMPLETE LOCATION DATA MAY LEAD TO DEATH, PERSONAL INJURY, PROPERTY OR ENVIRONMENTAL DAMAGE. NEITHER BLINK, NOR ANY OF ITS CONTENT PROVIDERS, GUARANTEES THE AVAILABILITY, ACCURACY, COMPLETENESS, RELIABILITY, OR TIMELINESS OF LOCATION DATA TRACKED OR DISPLAYED BY THE BLINK PLATFORM. ANY OF YOUR INFORMATION, INCLUDING GEOLOCATIONAL DATA, YOU UPLOAD, PROVIDE, OR POST ON THE BLINK PLATFORM MAY BE ACCESSIBLE TO BLINK AND CERTAIN USERS OF THE BLINK PLATFORM.
BLINK ADVISES YOU TO USE THE BLINK PLATFORM WITH A DATA PLAN WITH UNLIMITED OR VERY HIGH DATA USAGE LIMITS, AND BLINK SHALL NOT RESPONSIBLE OR LIABLE FOR ANY FEES, COSTS, OR OVERAGE CHARGES ASSOCIATED WITH ANY DATA PLAN YOU USE TO ACCESS THE BLINK PLATFORM.
THIS PARAGRAPH APPLIES TO ANY VERSION OF THE BLINK PLATFORM THAT YOU ACQUIRE FROM THE APPLE APP STORE. THIS AGREEMENT IS ENTERED INTO BETWEEN YOU AND BLINK. APPLE, INC. (“APPLE”) IS NOT A PARTY TO THIS AGREEMENT AND SHALL HAVE NO OBLIGATIONS WITH RESPECT TO THE BLINK PLATFORM. BLINK, NOT APPLE, IS SOLELY RESPONSIBLE FOR THE BLINK PLATFORM AND THE CONTENT THEREOF AS SET FORTH HEREUNDER. HOWEVER, APPLE AND APPLE’S SUBSIDIARIES ARE THIRD PARTY BENEFICIARIES OF THIS AGREEMENT. UPON YOUR ACCEPTANCE OF THIS AGREEMENT, APPLE SHALL HAVE THE RIGHT (AND WILL BE DEEMED TO HAVE ACCEPTED THE RIGHT) TO ENFORCE THIS AGREEMENT AGAINST YOU AS A THIRD PARTY BENEFICIARY THEREOF. THIS AGREEMENT INCORPORATES BY REFERENCE APPLE’S LICENSED APPLICATION END USER LICENSE AGREEMENT, FOR PURPOSES OF WHICH, YOU ARE “THE END-USER.” IN THE EVENT OF A CONFLICT IN THE TERMS OF THE LICENSED APPLICATION END USER LICENSE AGREEMENT AND THIS AGREEMENT, THE TERMS OF THIS AGREEMENT SHALL CONTROL.
YOU WILL DEFEND, INDEMNIFY, AND HOLD BLINK INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS HARMLESS FROM ANY CLAIMS, ACTIONS, SUITS, LOSSES, COSTS, LIABILITIES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) RELATING TO, IN CONNECTION WITH, OR ARISING OUT OF YOUR USE OF THE BLINK PLATFORM AND PARTICIPATION IN THE SERVICES, INCLUDING: (1) YOUR BREACH OF THIS AGREEMENT OR THE DOCUMENTS IT INCORPORATES BY REFERENCE; (2) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF ANOTHER USER OR THIRD PARTY AS A RESULT OF YOUR OWN INTERACTION WITH SUCH USER OR THIRD PARTY; (3) ANY ALLEGATION THAT ANY MATERIALS THAT YOU SUBMIT TO US OR TRANSMIT THROUGH THE BLINK PLATFORM OR TO US INFRINGE OR OTHERWISE VIOLATE THE COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY OR OTHER RIGHTS OF ANY USER OR THIRD PARTY; (4) YOUR OWNERSHIP, USE OR OPERATION OF A CAMERA, PHOTOGRAPHIC EQUIPMENT, MOTOR VEHICLE OR PASSENGER VEHICLE, INCLUDING YOUR PROVISION OF SERVICES AS A PHOTOGRAPHER; AND/OR (5) ANY OTHER ACTIVITIES IN CONNECTION WITH THE SERVICES. THIS INDEMNITY SHALL BE APPLICABLE WITHOUT REGARD TO THE NEGLIGENCE OF ANY PARTY, INCLUDING ANY INDEMNIFIED PERSON. EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, IN NO EVENT WILL BLINK’S AGGREGATE LIABILITY ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, THE BLINK PLATFORM OR THE BLINK SERVICE, OR FROM THE USE OF OR INABILITY TO USE THE BLINK PLATFORM OR SERVICE EXCEED THE AMOUNTS YOU HAVE PAID TO, OR HAVE BEEN PAID FROM OR THROUGH, BLINK (AS A LIMITED PAYMENT AGENT) FOR USE OF THE BLINK PLATFORM OR SERVICE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BLINK AND YOU.
15. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE BLINK PLATFORM OR SERVICE REMAINS WITH YOU. IN NO EVENT WILL BLINK, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY “BLINK” FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE BLINK PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THE BLINK PLATFORM, THE SERVICES, OR THIS AGREEMENT, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE BLINK PLATFORM MAY BE USED BY YOU TO REQUEST AND SCHEDULE PHOTOGRAPHY, GOODS, OR OTHER SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT BLINK HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY PHOTOGRAPHY, GOODS OR OTHER SERVICES PROVIDED TO YOU BY PHOTOGRAPHERS OR OTHER THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT. CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
16. Export Control
You may not use, export, re-export, import, or transfer the Services except as authorized by United States law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Blink Platform or the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
17. Term and Termination
This Agreement is effective upon your creation of a User account. This Agreement may be terminated: a) by User, without cause, upon seven (7) days’ prior written notice to Blink; or b) by either Party immediately, without notice, upon the other Party’s material breach of this Agreement. In addition, Blink may terminate this Agreement or deactivate your User account immediately in the event: (1) you no longer qualify to provide Services under applicable law, rule, permit, ordinance or regulation; (2) you fall below Blink’s star rating or cancellation threshold; (3) Blink has the good faith belief that such action is necessary to protect the safety of the Blink community or third parties, provided that in the event of a deactivation pursuant to (1)-(3) above, you will be given notice of the potential or actual deactivation and an opportunity to attempt to cure the issue to Blink’s reasonable satisfaction prior to Blink permanently terminating the Agreement. For all other breaches of this Agreement, you will be provided notice and an opportunity to cure the breach. If the breach is cured in a timely manner and to Blink’s satisfaction, this Agreement will not be permanently terminated. All provisions of this Agreement, which by their context survive termination, shall survive any termination or expiration of this Agreement.
18. DISPUTE RESOLUTION AND ARBITRATION AGREEMENT
(a) Agreement to Binding Arbitration Between You and Blink.
YOU AND BLINK MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with Blink ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and Blink, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders. This Arbitration Agreement also applies to claims between you and Blink’s service providers, including but not limited to background check providers and payment processors; and such service providers shall be considered intended third party beneficiaries of this Arbitration Agreement.
Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND BLINK. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of, in connection with, or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Blink Platform, the Services, any other goods or services made available through the Blink Platform, your relationship with Blink, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, background checks performed by or on Blink’s behalf, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by Blink, any personal injury, wrongful death or property damage or loss, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Blink and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND BLINK ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
(b) Prohibition of Class Actions and Non-Individualized Relief.
YOU UNDERSTAND AND AGREE THAT YOU AND BLINK MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND BLINK BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (B) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST BLINK.
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining claims and may be brought in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(c) Representative PAGA Waiver.
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent permitted by law: (1) you and Blink agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and Blink agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the Parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(d) Rules Governing the Arbitration.
Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA’s website (www.adr.org) (the “AAA Rules”) or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Blink will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Customers or Photographers, but is bound by rulings in prior arbitrations involving the same Customer or Photographer to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
(e) Arbitration Fees and Awards.
The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
- If you initiate arbitration under this Arbitration Agreement after participating in the optional Negotiation process described in subsection (k) below and are otherwise required to pay a filing fee under the relevant AAA Rules, Blink agrees that, unless your claim is for $5,000 or more, your share of the filing and arbitration fees is limited to $50, and that, after you submit proof of payment of the filing fee to Blink, Blink will promptly reimburse you for all but $50 of the filing fee. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the claim is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules.
- If Blink initiates arbitration under this Arbitration Agreement, Blink will pay all AAA filing and arbitration fees.
- With respect to any Claims brought by Blink against a Photographer, or for Claims brought by a Photographer against Blink that: (A) are based on an alleged employment relationship between Blink and a Photographer; (B) arise out of, or relate to, Blink’s actual deactivation of a Photographer’s User account or a threat by Blink to deactivate a Photographer’s User account; (C) arise out of, or relate to, Blink’s actual termination of a Photographer’s Agreement with Blink under the termination provisions of this Agreement, or a threat by Blink to terminate a Photographer’s Agreement; (D) arise out of, or relate to, Fees (as defined in this Agreement), tips, or average hourly guarantees owed by Blink to Photographers for Services, other than disputes relating to referral bonuses, other Blink promotions, or consumer-type disputes, or (E) arise out of or relate to background checks performed in connection with a user seeking to become a Photographer (the subset of Claims in subsections (A)-(E) shall be collectively referred to as “Photographer Claims”), Blink shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by Blink pursuant to the fee provisions above). However, if you are the party initiating the Photographer Claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you provide Services to Customers, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or subsection (e)(1) above. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. For purposes hereof, the term “Photographer” shall be deemed to include both Photographers and Photographer applicants who have not been approved by Blink to shoot photos.
- Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
- At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
- Although under some laws Blink may have a right to an award of attorneys’ fees and non-filing fee expenses if it prevails in an arbitration, Blink agrees that it will not seek such an award.
- If the arbitrator issues you an award that is greater than the value of Blink’s last written settlement offer made after you participated in good faith in the optional Negotiation process described in subsection (k) below, then Blink will pay you the amount of the award or U.S. $1,000, whichever is greater.
(f) Location and Manner of Arbitration.
Unless you and Blink agree otherwise, any arbitration hearings between Blink and a Customer will take place in the county of your billing address, and any arbitration hearings between Blink and a Photographer will take place in the county in which the Photographer provides Services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. If your Claim is for $10,000 or less, Blink agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as determined by the AAA Rules. If your Claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
(g) Exceptions to Arbitration.
This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction; (2) a representative action brought on behalf of others under PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver of such action is deemed unenforceable by a court of competent jurisdiction under applicable law not preempted by the FAA; (3) claims for workers’ compensation, state disability insurance and unemployment insurance benefits; and (4) claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board (“NLRB”), or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration However, should you bring an administrative claim, you may only seek or recover money damages of any type pursuant to this Arbitration Provision, and you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint, except for a complaint issued by the NLRB. Should you participate in an NLRB proceeding, you may only recover money damages if such recovery does not arise from or relate to a claim previously adjudicated under this Arbitration Provision or settled by you. Similarly, you may not recover money damages under this Arbitration Provision if you have already adjudicated such claim with the NLRB. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
In addition to the severability provisions in subsections (c) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(i) Photographer Claims in Pending Settlement.
If you are a member of a putative class in a lawsuit against Blink involving Photographer Claims and a Motion for Preliminary Approval of a Settlement has been filed with the court in that lawsuit prior to this Agreement’s effective date (a “Pending Settlement Action”), then this Arbitration Agreement shall not apply to your Photographer Claims in that particular class action. Instead, your Photographer Claims in that Pending Settlement Action shall continue to be governed by the arbitration provisions contained in the applicable Agreement that you accepted prior to this Agreement’s effective date.
(j) Opting Out of Arbitration for Photographer Claims That Are Not In a Pending Settlement Action.
As a Photographer or Photographer applicant, you may opt out of the requirement to arbitrate Photographer Claims pursuant to the terms of this subsection if you have not previously agreed to an arbitration provision in Blink’s Terms of Service where you had the opportunity to opt out of the requirement to arbitrate. If you have previously agreed to such an arbitration provision, you may opt out of any revisions to your prior arbitration agreement made by this provision in the manner specified below, but opting out of this arbitration provision has no effect on any previous, other, or future arbitration agreements that you may have with Blink. If you have not previously agreed to such an arbitration provision and do not wish to be subject to this Arbitration Agreement with respect to Photographer Claims, you may opt out of arbitration with respect to such Photographer Claims, other than those in a Pending Settlement Action, by notifying Blink in writing of your desire to opt out of arbitration for such Photographer Claims, which writing must be dated, signed and delivered by: (1) electronic mail to firstname.lastname@example.org, or (2) by certified mail, postage prepaid and return receipt requested, or by any nationally recognized delivery service (e.g, UPS, Federal Express, etc.) that is addressed to:
109 Town Center Corte Madera
Corte Madera, CA 94925
Attention : General Counsel
Cases have been filed against Blink and may be filed in the future involving Photographer Claims. You should assume that there are now, and may be in the future, lawsuits against Blink alleging class, collective, and/or representative Photographer Claims in which the plaintiffs seek to act on your behalf, and which, if successful, could result in some monetary recovery to you. But if you do agree to arbitration of Photographer Claims with Blink under this Arbitration Agreement, you are agreeing in advance that you will bring all such claims, and seek all monetary and other relief, against Blink in an individual arbitration provision, except for the Photographer Claims that are part of a Pending Settlement Action. You are also agreeing in advance that you will not participate in, or seek to recover monetary or other relief, for such claims in any court action or class, collective, and/or representative action. You have the right to consult with counsel of your choice concerning this Arbitration Agreement and you will not be subject to retaliation if you exercise your right to assert claims or opt- out of any Photographer Claims under this Arbitration Agreement.
(k) Optional Pre-Arbitration Negotiation Process.
Before initiating any arbitration or proceeding, you and Blink may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and Blink. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute (“Notice”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to Blink’s business, operations and properties, information about a User made available to you in connection with such User’s use of the Blink Platform or the Services, which may include the User’s name, Shoot(s) location, contact information and photo (“Confidential Information”) disclosed to you by Blink for your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Blink in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to Blink with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by Blink or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of Blink; becomes known to you, without restriction, from a source other than Blink without breach of this Agreement by you and otherwise not in violation of Blink’s rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that you shall provide prompt notice of such court order or requirement to Blink to enable Blink to seek a protective order or otherwise prevent or restrict such disclosure.
20. Other Services
In addition to connecting Customers with Photographers, the Blink Platform may enable Users to provide or receive goods or services from other third parties. For example, Users may be able to use the Blink Platform to order a delivery of goods, purchase a digital item, request a photo, or when travelling outside of the United States, to connect with local platforms and request services from local Photographers (collectively, the “Other Services”). You understand that the Other Services are subject to the terms and pricing of the third-party provider. If you choose to purchase Other Services through the Blink Platform, you authorize Blink to charge your payment method on file according to the pricing terms set by the third-party provider. You agree that Blink is not responsible and may not be held liable for the Other Services or the actions or omissions of the third- party provider. Such Other Services may not be investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Other Services accessed through the Blink Platform.
Except as provided in the DISPUTE RESOLUTION AND ARBITRATION AGREEMENT above, this Agreement shall be governed exclusively and irrevocably by the laws of the State of California without regard to choice of law principles. This choice of law provision is only intended to specify the use of California law to interpret this Agreement and is not intended to create any other substantive right to non- Californians to assert claims under California law whether by statute, common law, or otherwise. If any provision of this Agreement is or becomes invalid or non- binding, the parties shall remain bound by all other provisions of this Agreement. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement. You agree that this Agreement and all incorporated agreements may be automatically assigned by Blink, in our sole discretion by providing notice to you. Except as explicitly stated otherwise, any notices to Blink shall be given by certified mail, postage prepaid and return receipt requested to Blink Inc., 109 Town Center Corte Madera, Corte Madera, CA 94925. Any notices to you shall be provided to you through the Blink Platform or given to you via the email address or physical address you provide to Blink during the registration process. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. The words “include”, “includes” and “including” are deemed to be followed by the words “without limitation”. A party’s failure to act with respect to a breach by the other party does not constitute a waiver of the party’s right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between you and Blink with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written. You may not assign or transfer the rights or obligations granted by this Agreement, by operation of law or otherwise, without Blink’s prior written consent. Any attempt by you to assign or transfer this Agreement (or the rights or obligations hereunder), without such consent, will be null and of no effect. Blink may assign or transfer this Agreement, at its sole discretion, without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
If you have any questions regarding the Blink Platform or Services, please contact our Customer Support Team through our Help Center.