These Terms of Use (“the Terms”) constitute a legally binding agreement that governs your access to and use of the Clicke Mobile Application (the “Application”), the Clicke website located at  www.clicke.co (the “Website”), content, and technologies made available by Clicke, Inc. (collectively, the “Clicke Platform”).

 

By accessing and/or using the Clicke Platform, you warrant that you understand and agree to abide by these Terms. You may not use or access the Clicke Platform if you do not agree to abide by the Terms. Supplemental terms may apply to certain Services, as defined in Section 2,  provided by the Clicke Platform and such terms will be disclosed to you in connection with the applicable Services. Supplemental terms are in addition to and should be considered a part of the Terms. In the event of any inconsistency between the Terms and supplemental terms, the supplemental terms will take precedence.

 

All rights not expressly granted to you are reserved by Clicke, Inc.

 

1. MODIFICATION. Clicke, Inc. reserves the right to modify the Terms. Modified Terms will be binding upon being posted in this location. Your continued access to and/or use of the Clicke Platform after such posting constitutes your acceptance of the Terms, as modified. 

 

2. THE SERVICES

2.1. Overview. The Clicke Platform provides a marketplace through which people accessing and/or using the Clicke Platform (the “Users”) can schedule Bookings for photography, videography, and related services (collectively, “Creative Content”). The Services consist of the Clicke Platform’s provision of the Creative Content marketplace, matching service, and facilitation of both Bookings and associated Payment for the Bookings. For the sake of these Terms, the Users seeking Creative Content are referred to as Clients and the Users providing Creative Content are referred to as Artists. You acknowledge that your ability to obtain and/or provide Creative Content through the use of the Services does not establish Clicke, Inc. as a provider of Creative Content. Clicke, Inc.’s Services are limited to facilitating the matching of Clients with Artists and acting as an intermediary agent to accept payment from Clients on behalf of the Artists. Clicke, Inc. is not responsible for the behavior of any Users in connection with the Services or the quality of the Artists’ Creative Content.

 

2.2. License. Subject to your compliance with these Terms, Clicke, Inc. grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license (the “License”) to (i) access and use the Application on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information, and related materials made available through the Services. Any rights not expressly granted herein are reserved by Clicke, Inc. 

 

2.3. Restrictions. You may not share or make the Application available to third parties (unless to the degree allowed by the Apple Terms and Conditions, and with Clicke, Inc.'s prior written consent), sell, rent, lend, lease or otherwise redistribute the Application. You may not reverse engineer, translate, disassemble, integrate, decompile, integrate, remove, modify, combine, create derivative works or updates of, adapt, or attempt to derive the source code of the Application, or any part thereof. You may not copy or alter the Application or portions thereof. You may not remove any intellectual property notices. You acknowledge that no unauthorized third parties may gain access to these copies at any time. Violations of the obligations mentioned above, as well as the attempt of such infringement, may be subject to prosecution and damages.

 

2.4. Third Party Services. Apple, Inc., and Google, Inc. are third-party beneficiaries, not parties, to the Terms if you access the Application through Apple iOS or Android-powered mobile devices. Your access to the Services through the Application on third party-powered devices is subject to the terms set forth in the applicable third party beneficiaries’ terms of service.

 

3. ACCESS TO SERVICES

3.1. Registration Requirements. In order to use the Application and most of the Services hosted on the Clicke Platform, you must register for and maintain an active User Account (the “Registration”). Upon Registering, you will be asked whether you are a “photographer,” referring to Artists, or a “user,” referring to Clients. Unless otherwise permitted by Clicke, Inc. in writing, you may have a maximum of one account for each user type, meaning one account Registered to you as a photographer/Artist and one account Registered to you as a user/Client. To obtain a User Account, Clicke, Inc. will require you to submit certain Personal Information about yourself, such as your name, address, mobile phone number, age, and billing information. You agree to maintain accurate, complete, and up-to-date User Account information. Your Personal Information is governed by Clicke Inc.’s Privacy Policy. Clicke, Inc. may remove you from the Application and/or deny you access to and/or use of the Services at any time and for any reason, unless prohibited by law. Clicke, Inc. encourages you to review the Community Guidelines to avoid circumstances in which you are likely to be denied access to and/or use of the Services.

 

3.2. Age Restrictions. If you are under the age of 13, you are not authorized to access and/or use the Services, with or without Registering. You may access and/or use the Services as a Client and Register with the Application if you are 13 years of age or older, provided that you have the approval of your parent or guardian. If you are a Client 18 years of age or older, you may arrange and schedule Services on behalf of minors so long as (i) you have the written permission of the minors’ parent or guardian; (ii) you are Registered with the Application as a user/Client; and (iii) you are present for any and all interactions with the Artist(s). You may only access and/or use the Services as an Artist if you are 18 years of age or older. 

 

3.3. User Account Security and Conduct. You are responsible for all activity that occurs using your User Account, and you agree to maintain the security and secrecy of your User Account login information at all times. You may not assign or otherwise transfer your User Account to any other person or entity. Clicke, Inc. may ask you to provide proof of your identity to access and/or use the Services, and you agree that you may be denied access and/or use of the Services if you fail to produce proof of identity or if Clicke, Inc. deems your proof of identity false or insufficient. You agree to apply with all applicable laws when accessing and/or using the Services, and you may only access and/or use the Services for lawful purposes. 

 

3.4. Mobile Phone Requirement. You will require a mobile phone and data network access to Register for a User Account and to use the Application and most of the Services. By providing your mobile phone number, you agree that Clicke, Inc. and its affiliates may call and message you in relation to the Services. You are responsible for your mobile network’s data and messaging rates that may apply when you access and/or use the Services from your mobile phone. 

 

3.5. Artist/Photographer-Specific Registration Requirements. To Register as an Artist with the Application and/or to access and/or use the Services, you will need to provide Clicke, Inc. with your portfolio, social media handles, and website, in addition to other details and accurate Personal Information. Clicke, Inc. may, but is not obligated to, conduct a background check on Artists. Artists must consent to a background check before they are permitted to perform Services through Clicke, Inc. Clicke, Inc. reserves the right to revoke Artists’ Registration and deny Artists access to and/or use of the Services for any reason, unless prohibited by law. Clicke, Inc. may also remove Artists from the Application and deny them access to and/or use of the Services at any time. Clicke, Inc. encourages you to review the Community Guidelines to avoid circumstances in which you are likely to be denied access to and/or use of the Services.

 

4. PAYMENT

4.1. General. You agree to pay for all Charges associated with Bookings you arrange through the Clicke Platform. Charges will include the cost of the Creative Content, applicable local taxes, and related fees as applicable, such as transportation costs for the Artist or overtime for an extended photoshoot. As part of the Registration process, Users are required to provide Clicke, Inc. with a Designated Payment Method. The Designated Payment Method may be a debit or credit card. By providing a debit or credit card as your Designated Payment Method, you represent and warrant that you are authorized to use the Payment Method, that the billing information is accurate, and that the Designated Payment Method contains sufficient funds to cover all Charges that you incur using the Clicke Platform. Except as written in Clicke’s Cancellation Policy, expressly approved by Clicke, Inc. in writing, or expressed herein, all charges are final and nonrefundable. 

 

4.2. Modified Charges. Clicke, Inc. reserves the right to establish, remove, and/or modify Charges for any and all Services obtained through the Clicke Platform. Clicke, Inc. will make reasonable efforts to inform you of the Charges prior to charging your Designated Payment Method, but you will be responsible for Charges incurred under your User Account regardless of your awareness of the Charges. Clicke, Inc. may elect to offer promotional discounts to some Users that may result in different amounts charged for the same or similar Bookings, and you agree, that unless they are made available to you directly, such promotional offers and/or discounts should have no bearing on the Charges applied to your User Account. 

 

4.3. Cancellations. You may cancel Bookings at any time prior to the commencement of the Bookings themselves, in which case you may be charged a cancellation fee in accordance with Clicke’s Cancellation Policy. If the other User with whom the Booking is scheduled cancels, Clicke, Inc. may provide you with a partial or full refund of the Booking Charge, in accordance with Clicke’s Cancellation Policy.

 

4.4. Limited Payment Collection Agent. Each User Registered as an Artist authorizes Clicke, Inc. to act as a limited payment collection agent for the sole purpose of collecting Charges from the Client for the Creative Content produced by the Artist. For On-Demand Bookings made through the Application, Clicke, Inc. will inform the Artist how much they will be paid for any On-Demand Booking Package before the Artist accepts the Booking. Similarly, Clients may select which On-Demand Package they desire and view the associated Charges before being charged for the Booking. For Planned Bookings, the Artist will set their hourly rate on the Application and/or through the Clicke Platform, and by requesting a booking with the Artist, the Client agrees to be charged for the hourly rate displayed on the Application and/or provided by Clicke, Inc., in addition to applicable fees charged by Clicke, Inc.  The total Charge to the Client will include the payment to the Artist for the Creative Content and associated fees paid to Clicke for facilitating the transaction. For all types of Bookings, the Artist is only entitled to the cost of the Creative Content, as agreed to on the Application as part of an On-Demand Booking Package, their hourly rate for Planned Bookings, or a rate agreed to in writing by the Client, Artist, and Clicke, Inc. Clicke, Inc. will issue payment from complete Bookings to each Artist on a bimonthly basis through Stripe. In order to receive payment from Bookings, each Artist will be required to create and maintain a Stripe account. Clicke, Inc. retains the right to withhold payment for Bookings and/or issue monetary penalties to the Artist in accordance with Clicke’s Cancellation Policy.

 

4.5. Taxes and Relationships.  You acknowledge that nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, or employment relationship between you and Clicke, Inc. You may identify yourself as a Clicke, Inc. User, but you may not identify yourself as Clicke, Inc., a representative, or employee of Clicke, Inc. If you are registered as and are providing Creative Content through the Clicke Platform as an Artist, you agree that you are acting as an independent contractor and that you are obligated to report all income received through Clicke, Inc. to the Internal Revenue Service and pay your local, state, and federal taxes as required by law. 

 

5. NON-CIRCUMVENTION. 

5.1 Non-Circumvention Period. You acknowledge and agree that a substantial portion of Clicke, Inc.’s compensation for the provision of the Services is collected through the additional fees associated with Bookings. Clicke, Inc. only receives such fees when the Booking has been sufficiently completed, the Client has received the Creative Content, and the Artist has received their portion of the total Charge. Since these Bookings were facilitated by the matching service provided by the Clicke Platform’s Services, Clicke, Inc. requires that Clients and Artists only engage in Bookings with each other through the Clicke Platform’s Services. By accessing and using the Services, you agree to use the Services as your exclusive method to request, arrange, and facilitate payment for all Bookings directly or indirectly arising out of User relationships formed through the Clicke Platform (collectively, “Clicke Booking Exclusivity”). You hereby agree to Clicke Booking Exclusivity with every other User for one year following your most recent Interaction, as defined in the following sentence, with said User (the “Non-Circumvention Period”). Interaction is defined as any conversation with another User matched with you on the Application or introduced to you through the Clicke Platform. During the Non-Circumvention Period, you agree NOT to:

1. Offer or accept any offer from another User to contract, hire, pay, or receive payment off the Clicke Platform;

2. Refer a User you identified through the Clicke Platform to a third party who is not a User for the purpose of making or receiving payments other than through the Clicke Platform.

Should another User engage in any of the behaviors explained in (a) and (b), you agree to notify Clicke, Inc. immediately. You acknowledge and agree that without the payment of a Conversion Fee as explained in Section 5.2, a violation of the Non-Circumvention Period amounts to a material breach of these Terms. If you violate the Non-Circumvention Period, Clicke, Inc. reserves the right to withhold Booking payments and Creative Content associated with Bookings as forms of payment for the Conversion Fee owed to Clicke, Inc. and remove you from the Clicke Platform immediately. Should you wish to rejoin the Clicke Platform and recover Booking payments retained by Clicke, Inc. for the Conversion Fee, you will need to pay a full Conversion Fee, as explained below.

 

5.2. Conversion Fees. If you would like to circumvent the Non-Circumvention Period, you agree that you and/or the other User involved in the non-Clicke Booking will either pay Clicke, Inc. a flat fee of $3,500, or in cases in which the Client wishes to employ the Artist, the Users will be responsible for a collective total of 20 percent of the estimated annual salary of the Artist; both of these fees are referred to as Conversion Fees. In the event that you are asked to pay a Conversion Fee based on the Artist’s estimated salary, you warrant that you will accurately report the correct percentage of the Artist’s estimated salary. 

 

6. INTELLECTUAL PROPERTY

6.1. Clicke, Inc. Rights. You acknowledge and agree that the Clicke Platform contains content owned by Clicke, Inc. and protected by copyright, patent, trademark, trade secret, and other proprietary laws. You agree that you will not copy, modify, adapt, translate, reverse engineer, disassemble, rent, loan, sell, or distribute (in part or in entirety) any portion of the Services provided by the Clicke Platform. In connection with your use of the Services, you will not engage in any data mining, bots, or similar process for circumventing the navigational structure of the Clicke Platform. Any rights not expressly granted to you are reserved by Clicke, Inc. The Clicke, Inc. name, logos, designs, and service names are trademarks and service marks of Clicke, Inc. (collectively, “Clicke Marks”). You may not use any of the Clicke Marks for personal or commercial use without express, written permission from Clicke, Inc. 

 

6.2. User Rights in Relation to Bookings. When a Booking is agreed to by both the Client and Artist, the intellectual property for Creative Content to be produced during that Booking (the “Booking IP”) is owned by Clicke, Inc. Upon completion of the Booking, the Artist agrees to transfer the Creative Content to Clicke, Inc. within the time frame specified on the Application or in writing by both parties. Once Clicke, Inc. has received the Creative Content from the Artist and the completed payment for the Booking charge from the Client, Clicke, Inc. will transfer the Creative Content and the associated Booking IP to the Client. Users hereby grant Clicke, Inc. a non-exclusive, perpetual, royalty-free license to use and republish the Creative Content from Bookings and the Booking IP for marketing and promotional purposes. Clicke, Inc. agrees to attribute the Creative Content to the associated Artist and to inform Clients if it intends to use photos for marketing and promotional purposes; Users will then have an opportunity to object to the uses of their Booking IP and Creative Content by Clicke, Inc., should they wish. Users also grant the Artist who provided the Creative Content for the Booking a non-exclusive, perpetual, royalty-free license to use and republish the Creative Content from the Booking and the Booking IP for commercial purposes to promote themselves as an Artist. The Artist may not use the Creative Content and Booking IP from Clicke Platform Bookings for any other commercial purpose or entity other than themselves and the promotion of their own business as an Artist.

 

6.3. Intellectual Property and Confidentiality for Commercial Bookings. Should you be interested in a Booking for commercial use and/or desire stricter intellectual property and confidentiality requirements for proprietary information than what are provided for in these Terms, Clicke, Inc. highly recommends that you complete the online form at https://www.clicke.co/business-contact-form to request supplemental terms. It is your responsibility to request supplemental terms and to agree to such terms in writing with the Artist and Clicke, Inc. prior to the completion of the applicable Booking.

 

6.4. Artist Rights. By uploading content to the Clicke Platform or sharing content with other Users through the Clicke platform, you hereby grant Clicke, Inc. with the non-exclusive, perpetual, royalty-free license to use and republish the content used in your portfolio(s) hosted on the Clicke Platform (“Artist Portfolio Content”). If Clicke, Inc. should desire to use your Artist Portfolio Content for marketing and/or promotional use, Clicke, Inc. will provide proper attribution in the affiliated marking material. You may request that Clicke, Inc. not use your Artist Portfolio Content; Clicke, Inc. may but is not required to agree to such requests. Unless the Client or Clicke, Inc. provides written notice otherwise, you, as an Artist, retain the right to use the Creative Content from your Bookings for your online and social media portfolios.

 

6.5. Copyright Complaints. The Digital Millennium Copyright Act of 1998 (the “DMCA”)  provides recourse should you believe that any material on the Clicke Platform infringes on your rights under U.S. copyright law. If you believe that any materials hosted on the Clicke Platform infringe upon your copyright, you or your agent may send Clicke, Inc. a notice requesting that the material be removed from the Clicke Platform. Notices and counter-notices must meet the current statutory requirements imposed by the DMCA. Notices and counte-rnotices for Clicke, Inc. should be sent to Samantha Wolk at legalnotices@clicke.co. 

 

7. DIGITAL PRIVACY. Please refer to Clicke’s Privacy Policy for more information on how we are protecting your data and digital privacy.

 

8. TERMINATION. Clicke, Inc. may suspend or terminate your User Account (i) for material breach; (ii) if you engage in unethical, illegal, or inappropriate conduct in violation of Clicke’s Community Guidelines; (iii) due to inactivity; or (iv) at any time at the sole discretion of Clicke, Inc. Clicke, Inc. may but is not required to give you any notice of the suspension or termination of your User Account. You may also request to terminate your User Account either through the Application or in writing to Clicke, Inc. Should Clicke Inc. terminate your User Account, at our sole discretion or at your written request, you will no longer have access to the data, messages, files, or other material hosted on your User Account through the Clicke Platform. Clicke, Inc. has no liability whatsoever for the deletion of the content associated with your User Account. Even if you terminate your User Account with Clicke, Inc., the Non-Circumvention Period remains in effect and these Terms will continue to govern the relationships formed through the Services and Clicke Platform. 

 

9. USER DISPUTES. Clicke, Inc. Users are solely responsible for their interactions with each other in connection with the Services. Clicke, Inc. assumes no responsibility or liability with respect to such interactions. Clicke, Inc. reserves the right, but is not obligated, to become involved in resolving User disputes. Please refer to Clicke’s Cancellation Policy for more information on how we address cancellation-related disputes.

 

10. WARRANTIES. You represent and warrant to Clicke, Inc. that you have the full power and authority to accept these Terms and perform their obligations hereunder. 

 

11. SEVERABILITY AND HEADINGS. If any provision of these Terms is determined to be invalid, illegal, or unenforceable, the validity or enforceability of the other provisions will not be affected. The section headings in these Terms are for convenience only and do not define or limit the construction of the Terms in their entirety. 

 

12. LIMITATION OF LIABILITY. Clicke, Inc. is not liable, and you agree not to hold us liable, for any damages and/or losses arising out of or in connection with these Terms, including:

1. Your use of or inability to access and/or use the Services;

2. Delays or disruptions in the Services provided on the Clicke Platform;

3. Damage to your software or hardware due to the operation of the Application or other technologies hosted on the Clicke Platform;

4. The ratings provided by other Users;

5. The matching algorithm used for the On-Demand Bookings.

 

13. INDEMNIFICATION. You agree to release, indemnify, and hold Clicke, Inc. and its current and former trustees, officers, staff members, assignees, agents, and licensees harmless against any losses, costs, expenses (including reasonable attorneys’ fees), judgements, settlements, and damages arising from any claim or action arising out of your breach of any covenant, representation, or warranty in these Terms. Notwithstanding, Clicke, Inc. will not be liable to you under this provision for an amount exceeding the Booking Charges paid to you through Clicke, Inc. during the preceding year (if you are an Artist) and/or the Charges paid by you to Clicke, Inc. during the preceding year (if you are a Client).

 

14. GOVERNING LAW. These Terms are governed by, and to be construed in accordance with, the laws of the United States and the State of New York.

 

15. ARBITRATION AGREEMENT. 

15.1. Agreement to Binding Arbitration Between You and Clicke, Inc. You and Clicke, Inc. mutually agree to waive our respective rights to dispute resolution in a court of law by a judge or jury and agree to resolve any dispute by arbitration, as delineated below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after the termination of the Terms and/or the termination of your User Account with Clicke, Inc. Any arbitration under this agreement will take place on an individual basis. Class arbitrations and class actions are not permitted. This Arbitration Agreement applies to all Claims, as defined in Section 15.2, between you and Clicke, Inc., including with our affiliates, subsidiaries, successors and assigns, officers, employees, agents, and shareholders. 

 

15.2. Claims Covered. Except as provided in Section 16.4, claims covered by this Arbitration Agreement include, but are not limited to, all claims, controversies, or disputes, whether based on past, present, or future events, arising out of relation to: these Terms and prior versions thereof, the Clicke Platform, Clicke, Inc. promotions, your relationship with Clicke, Inc., the suspension and/or termination of your User Account, background checks performed on behalf of Clicke, Inc., payments made by you or payments allegedly owed to you, any county, city, state, or federal wage-hour law, compensation, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, claims arising under the Defend Trade Secrets Act of 2016, Civil Rights Act of 1964, Rehabilitation Act, Civil Rights Acts of 1866 and 1871, Civil Rights Act of 1991, the Pregnancy Discrimination Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non-Discrimination Act, Uniformed Services Employment and Reemployment Rights Act, Worker Adjustment and Retraining Notification Act, Older Workers Benefits Protection Act of 1990, Occupational Safety and Health Act, Consolidated Omnibus Budget Reconciliation Act of 1985, False Claims Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to your User relationship with Clicke, Inc. or the termination of that relationship.

 

15.3. Pre-Arbitration Dispute Resolution. You and Clicke, Inc. agree that we will notify each other of any and all arbitration Claims against the other party. You agree to notify Clicke, Inc. by email at legalnotices@clicke.co, and Clicke, Inc. agrees to provide you with notice of any and all arbitration Claims to your email address on file (in each case, a “Legal Notice”). Legal Notices must include pertinent User Account information, a brief description of the Claim, the specific relief sought, and contact information. Upon receipt or delivery of a Legal Notice, Clicke, Inc. will seek informal, voluntary resolution of the Claim(s). Legal Notices excluded, all communications, oral and written, created in the course of the Pre-Arbitration Dispute Resolution are confidential and inadmissible as evidence of liability should the dispute proceed to Arbitration. 

 

15.4. Exceptions to Arbitration. This Arbitration Agreement shall not require arbitration for small claims brought on an individual basis that are within the scope of a New York State small claims court’s jurisdiction.

15.5. Arbitration Procedures. Any Arbitration conducted pursuant to this Arbitration Agreement will be administered by the American Arbitration Association (“AAA”) pursuant to the Consumer Arbitration Rules that are in effect on the date that the Arbitration is initiated, as modified by this Arbitration Agreement in these Terms. If there is any inconsistency between the terms of this Arbitration Agreement and the AAA Consumer Arbitration Rules, the applicable terms of this Arbitration Agreement will prevail.  The arbitrator must also follow the provisions of these Terms, as a court would. The arbitrator may not consolidate more than one person’s claims or preside over any form of collective, class, or representative proceeding. You and Clicke, Inc. may select a different arbitrator upon mutual written agreement. As part of the arbitration, you and Clicke, Inc. will have the opportunity for reasonable discovery of non-privileged information relevant to the Claim. The arbitrator may award any individualized remedies that would be available in a court of law. Upon reaching a decision, the arbitrator will provide a reasoned, written statement explaining the award given and the findings and conclusions upon which that decision was made. The arbitrator will decide the substance of all claims in accordance with applicable law and will honor all claims of privilege recognized by the law. The arbitrator will not be bound by rulings in prior arbitrations involving you or Clicke, Inc., but the arbitrator will be bound by rulings in prior arbitration proceedings between you and Clicke, Inc. The arbitrator’s award will be final and binding, and judgement on the award rendered may be entered in any court that has subject matter jurisdiction.

 

15.6. Costs of Arbitration. Payment of all filing, administration, arbitrator, and attorneys’ fees (collectively, the “Arbitration Fees”) will be governed by AAA rules. 

 

15.7. Location of Arbitration. Unless you and Clicke, Inc. agree otherwise, any arbitration hearings will take place in New York City or Brooklyn, NY.