Welcome to FotoNEX, a booking platform operated by FotoNEX Global, S.L., with its registered office in Barcelona, at Roger de Flor nº 275, 2º 1ª, 08025. These Terms of Service ("Terms") govern your access to and use of the FotoNEX website, applications, and services (collectively, the "Platform"). By accessing or using the Platform, you agree to be bound by these Terms. If you do not agree to these Terms, do not use the Platform.

1. Definitions

• Platform: The FotoNEX website, mobile applications, and all related services provided by FotoNEX.
• User/You: Any individual or entity accessing or using the Platform, including both Photographers and Clients.
• Photographer: A professional photographer offering services through the Platform and holding a registered Photographer account.
• Client: An individual or entity seeking and booking photography services through the Platform and holding a registered Client account.
• Service Provider: FotoNEX, the operator of the Platform.
• Booking: A confirmed agreement for photography services, facilitated by the Platform, between a Client and a Photographer.
• Blog Author or Contributor: A natural or legal person who creates and provides Content for publication on the Platform's blog under the specific conditions established in these Terms.
• Blog Content: Any article, text, photograph, video, graphic, or other original material created and contributed by a Blog Author for specific publication on the FotoNEX blog.
• Content: Any text, graphic, image, audio, video, or other material uploaded, published, transmitted, or made available to the public on the Platform by users.

2. Scope of Services and Nature of the Relationship

2.1. Independent Intermediary Role: FotoNEX operates exclusively as an Information Society Service Provider, facilitating a technological platform (Marketplace) to connect Clients with independent professional Photographers. FotoNEX is NOT a photography studio; it does NOT provide photography services itself, nor does it direct, edit, or deliver the final content. The contract for the provision of services is finalised solely and exclusively between the Client and the Photographer.

2.2. Absence of Employment Relationship: The Photographer acknowledges and accepts that they act as an independent business owner or self-employed professional. There is no employment, partnership, agency, or subordination relationship of any kind between FotoNEX and the Photographer. The Photographer maintains full autonomy to accept assignments, set their availability, use their own equipment, and define their artistic style and rates.

3. User Accounts and Registrations

3.1. Account Creation: To access certain features of the Platform, you must register for an account. You agree to provide accurate, current, and complete information during the registration process and to maintain the accuracy and completeness of this information at all times.

3.2. Account Security: You are responsible for safeguarding your password and for all activities and actions conducted under your account. You must notify FotoNEX immediately upon becoming aware of any breach of security or unauthorised use of your account. FotoNEX cannot and will not be liable for any loss or damage arising from your failure to maintain the security of your account and password.

3.3. Account Types: 

• Photographer Accounts: Photographers must provide verified professional credentials, including a portfolio and other relevant documentation as required by FotoNEX's verification process. 
• Client Accounts: Clients can create accounts to browse, book, and manage photography services.

3.4. Eligibility: You must be at least 18 years old and capable of forming a binding contract to use the Platform. By using the Platform, you represent and warrant that you meet this eligibility requirement.

3.5. Subscription Plans and Payments

FotoNEX offers different account types for Photographers: a free version ("Free") and paid versions with advanced features ("Premium" and "Elite").

a) Description of Plans and Rates: The features, storage limits, and specific tools included in each plan (Free, Premium, and Elite) are detailed on the [Pricing/Plans] page of the Platform.

b) Trial Period (Free Trial): FotoNEX may offer new users a free trial period (e.g., 30 days). At the end of this period, if the user does not confirm their subscription, the account will automatically revert to the "Free" modality.

c) Duration and Minimum Commitment (Important): All paid subscriptions ("Premium" and "Elite") have a minimum contractual duration of one (1) year (12 months) from the date of purchase, regardless of the payment method chosen by the User.

d) Payment Methods:

• Annual Payment: The User pays the full annual fee in advance, taking advantage of the applicable reduced price.
• Monthly Payment: The User opts to split the annual fee into monthly instalments. This method does not exempt the User from fulfilling the 12-month commitment period.

e) Renewal and Cancellation:

• Renewal: Annual subscriptions will automatically renew for successive periods of equal duration (one year), unless the User deactivates automatic renewal in their account before the expiry date.
• Early Cancellation: Since the subscription involves an annual commitment, if the User decides to cancel the service or terminate their account before the end of the committed 12-month period:
• • No refunds will be issued for amounts already paid (for an annual payment).
  • In the case of monthly payments, FotoNEX reserves the right to demand immediate payment of any outstanding instalments until the contracted annual fee is paid in full, as this is a fixed-term contract.

4. Definition and Modalities of the Photographic Service, Payment Conditions, Billing, Taxation, Cancellations, Refunds, and Force Majeure

4.1. Definition and Modalities of the Photographic Service

1. The characteristics, conditions, and scope of each photographic service are established by the Photographer and are presented as fixed options on the Photographer's profile on the Platform. The Client acknowledges that these conditions are not subject to individual negotiation but form part of the Photographer's predefined service offer.
2. During the booking process, the Client must choose one of the following types of services, depending on the availability offered by the Photographer:

a) Photography Reportage: Provision of photography services. b) Videography Reportage: Provision of video services.   c)Combined Reportage: Provision of services including both photography and video.

3. The Client's choice of service type is an essential element of the contract and will determine the final price. The breakdown of the price for each service type will be displayed clearly and transparently to the Client before the booking is confirmed and any payment obligation is assumed.
4. Unless otherwise specified in the service description, the deliverables will consist of high-quality digital files (e.g., JPEGs for photographs).
5. The Photographer will establish the deadline for delivery of the final material (images and/or videos) upon completion of the session. The said deadline will be clearly indicated in the service description and in the booking confirmation and will constitute a binding condition of the contract.

4.2. Payment Conditions, Billing, and Taxation

1. Payment Collection Management Mandate: The Photographer irrevocably designates and authorises FotoNEX (and its associated payment gateway, Stripe) as their limited collection agent, for the sole purpose of accepting payments from the Client on their behalf. The payment made by the Client to FotoNEX shall, for all legal purposes, be considered a direct payment to the Photographer, thereby extinguishing the Client's debt.
2. Compensation and Settlement (Netting): The Photographer expressly authorises FotoNEX to automatically deduct from the funds collected on their behalf: (i) the FotoNEX Service Commission (10% + applicable VAT) and (ii) any other applicable fees or penalties, before transferring the remaining balance to their bank account.
3. Treatment of Travel Expenses: Any fee charged by the Photographer for "Travel" or "Per Diems" is considered an integral part of the taxable base of the photographic service and will be subject to the same VAT rate as the main service (21% in Spain). FotoNEX’s commission will be applied to the total price of the service, including said expenses.
4. Billing Obligations (72-Hour Rule):

a) Exclusive Responsibility: The Photographer is solely responsible for issuing and delivering the complete legal invoice for the Photographic Service to the Client. FotoNEX issues invoices only for its brokerage commissions.

b) Mandatory Deadline: The Photographer undertakes to issue the invoice to the Client within a maximum period of 72 hours from the time the Client requests it through the Platform.

c) Non-compliance: Failure to comply with this obligation will entitle FotoNEX to suspend the Photographer's account and withhold pending payments until the breach is rectified, thus protecting the legal integrity of the platform.

4.3. Cancellation, Refund, and Force Majeure Policy

1. Grace Period (48 Hours): The Client has 48 hours from the booking confirmation to cancel at no cost. In this case, FotoNEX will refund 100% of the amount paid.
2. Retention of the Service Fee: Once the 48-hour grace period has elapsed, it is understood that FotoNEX's brokerage service has been fully provided. Consequently, the FotoNEX Service Fee (commission) will NOT be refundable under any circumstances, regardless of the cause of the cancellation.
3. Refund of the Photographer's Fee (Agreement between Parties): The refund of the portion of the Photographer's fee shall be governed exclusively by the terms and conditions the Photographer has established or agreed with the Client. FotoNEX does not impose a standardised cancellation policy and will act merely as the executor of the Photographer's instructions regarding the funds in escrow.
4. Timing of Settlement (Security of Funds): In the event of a late cancellation, if a payment to the Photographer is due (total or partial), FotoNEX will hold the funds in escrow and will not release them until the date the service was originally scheduled. This measure seeks to prevent fraud and financial disputes.
5. Cancellation by the Photographer: Photographers are contractually obliged to fulfil confirmed bookings. In exceptional and duly justified circumstances (for example, serious illness or a family emergency), a photographer may request the cancellation of a booking. Unjustified or repeated cancellations by a Photographer may lead to sanctions, including the suspension or deactivation of their account.
6. Force Majeure: The acceptance of Force Majeure causes for the refund of the Photographer's fee remains at the sole and exclusive discretion of the Photographer.
7. Modification of the Booking (Rescheduling): Any request to reschedule the booking is subject to availability and the Photographer's express acceptance. Modifications must be managed and confirmed through the Platform. If a new date cannot be agreed upon, the Client will treat the request as a cancellation, in accordance with the conditions described in this section.

5. Code of Conduct and Content Guidelines

5.1. General Code of Conduct: All users of the FotoNEX Platform undertake to:

• Act professionally and respectfully in all interactions with other users and FotoNEX staff.
• Refrain from any discriminatory, harassing, abusive, or offensive language or behaviour.
• Not engage in any activity that may damage the reputation of FotoNEX or its users.
• Not attempt to bypass the Platform's booking and payment system to conduct transactions directly outside of FotoNEX.
• Comply with all applicable local, national, and international laws and regulations.

5.2. Content Guidelines: When creating profiles, communicating, or uploading any Content to the Platform, users agree that their Content shall not:

• Be false, inaccurate, misleading, or fraudulent.
• Infringe the intellectual property rights (copyright, trademark, patent, trade secret) of third parties.
• Violate any privacy or publicity rights of third parties.
• Be defamatory, libellous, threatening, or harassing.
• Be obscene, pornographic, sexually explicit, or contain nudity.
• Promote discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group.
• Contain viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information.
• Constitute unsolicited or unauthorised advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes", or any other form of solicitation.
• Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with another person or entity.

5.3. FotoNEX's Right to Monitor and Remove Content: FotoNEX reserves the right, but not the obligation, to monitor Content on the Platform. We may, at our sole discretion, remove or restrict access to any Content that we deem harmful, offensive, or for any other reason, without prior notice.

5.4. User Responsibility for Content and Measures in Case of Breach

a) Exclusive Responsibility of the User: The User (both Photographer and Client) is solely and exclusively responsible for all Content they upload, publish, or transmit through the Platform. The User represents and warrants that they are the owner of all intellectual and industrial property rights over said Content or, failing that, that they have obtained all necessary licences, rights, consents, and permissions from the legitimate owners for its use on the Platform in accordance with these Terms.

b) Guarantee on Third-Party Rights: Specifically, the Photographer guarantees that:

i. They possess the copyright over all images that make up their portfolio and those they deliver to the Client, or they have explicit authorisation from the owner for their exploitation.

ii. They have obtained the free, specific, and unambiguous consent of all identifiable natural persons appearing in the photographs for the capture, reproduction, and publication of their image through the Platform, in compliance with current regulations on data protection and the right to one's own image. 

c) Exemption of Liability for FotoNEX: FotoNEX acts as a mere technological intermediary and does not perform prior supervision of user-generated Content. Consequently, the User exempts FotoNEX from any liability arising from third-party claims for infringements of intellectual and industrial property rights, the right to honour, privacy, or one's own image related to the published Content. The User undertakes to hold FotoNEX harmless against any sanction, claim, or cost (including solicitors' fees) arising from their breach.

d) Right of Withdrawal and Sanctions: Although FotoNEX has no obligation to monitor Content, it reserves the right, at its sole discretion, to withdraw any Content that infringes these Terms or current legislation, without the need for prior notice. Likewise, a serious or repeated breach of these obligations may result in the temporary suspension or permanent cancellation of the infringing User's account, as well as the deletion of all projects associated with that account.

5.5. Editorial Guidelines for Blog Authors and Contributors

In addition to complying with the general code of conduct applicable to all Users, Blog Authors undertake to follow these specific editorial guidelines for Blog Content:

5.5.1. Originality and Quality: All Blog Content must be original, unpublished, and not previously published in any other medium, unless expressly agreed with FotoNEX. The Content must comply with the standards of editorial quality, rigour, and thematic focus defined by FotoNEX. Plagiarism, whether total or partial, of third-party works is strictly prohibited.

5.5.2. Veracity and Responsibility: The Author is solely responsible for the veracity of the information, data, and opinions expressed in their Content. They must act with due diligence when checking the facts they present and, when necessary, appropriately cite the sources used.

5.5.3. Review and Approval Process: All Blog Content will be subject to a review and approval process by the FotoNEX editorial team before publication. FotoNEX reserves the right to suggest style or format modifications, correct grammatical or spelling errors, and not publish content that does not fit its editorial line or these Terms, without this generating any right to compensation for the Author.

5.5.4. Prohibited Content: Inclusion in the Blog Content of any material that is illegal, defamatory, libellous, incites hatred or discrimination, infringes third-party intellectual or industrial property rights, or violates the right to honour, privacy, or the image of any person is strictly prohibited.

 5.5.5. Links and Promotional Content: The inclusion of external links must provide value to the reader and be directly related to the theme of the Content. Any link for purely commercial, advertising, or self-promotional purposes must be expressly approved by FotoNEX.

6. Intellectual Property

6.1. Platform Ownership: The Platform, its original content (excluding user-generated Content), its features, and functionality are and will remain the exclusive property of FotoNEX and its licensors. The Platform is protected by copyright, trademark, and other laws of both Spain and other countries.

6.2. Trademarks: The name, logo, and all related names, designs, and slogans of FotoNEX are trademarks of FotoNEX or its affiliates or licensors. You must not use such marks without the prior written permission of FotoNEX.

6.3. User Content Licence: You retain ownership of any Content you upload to the Platform. However, by uploading Content, you grant FotoNEX a worldwide, non-exclusive, royalty-free, transferable, and sub-licensable licence to use, reproduce, distribute, prepare derivative works, display, and perform the Content in connection with the Platform and FotoNEX's business, including for the promotion of the Platform, through any media channel and via any medium. This licence terminates when you delete your Content or your account, unless your Content has been shared with others and they have not deleted it.

In exercising the exploitation rights licensed under this clause, especially for promotional uses and public dissemination, FotoNEX undertakes to always credit the User by name or pseudonym, respecting their moral rights of authorship over the work. This attribution obligation shall remain in force unless the User has expressly exercised their right to the erasure or anonymisation of personal data, in which case applicable data protection regulations shall prevail.

In simpler terms, this means:

• Your photos are yours. You retain ownership and can use them as you see fit outside of FotoNEX.
• You permit us to promote ourselves with your photos. By uploading them, you allow us to use your images to advertise FotoNEX in different media (our website, social networks, press articles, etc.).
• We will always mention you. We undertake to include your name or pseudonym when we use your photos for promotion, unless you have asked us to delete your personal data.
• We may collaborate with third parties. The permission you grant us is "transferable" and "sub-licensable". This means we can allow our partners (such as marketing agencies or media outlets) to use your photos, always for the same and sole purpose: promoting the FotoNEX platform.
• If you leave, we will stop using your photos. If you delete a photo or your account, the licence ends, and we will stop using that photo in new promotions. However, please note that if your content has already been shared publicly by other users (e.g. on their social networks), we may not be able to delete those copies.

 6.4. Specific Intellectual Property Conditions for Blog Content

Without prejudice to the provisions of the previous sections of this clause, the following conditions shall apply specifically to Blog Content contributed by Authors:

6.4.1. Ownership and Author Warranties: The Author shall at all times retain ownership of the intellectual property rights over the Blog Content they create. The Author represents and warrants that they are the original creator of the work, that they have complete disposal over it, and that there are no encumbrances or limitations on the exploitation rights. Furthermore, they warrant that the Content does not infringe the rights of third parties and exempt FotoNEX from any claims arising from a breach of this warranty.

6.4.2. Exploitation Licence in Favour of FotoNEX: By submitting Blog Content for publication, the Author grants FOTONEX GLOBAL, S.L. an irrevocable, perpetual, non-exclusive, worldwide, and royalty-free licence for use. This licence empowers FotoNEX to exercise, to the extent necessary for the Platform's activity, the exploitation rights over the Content, including, but not limited to:

a) Reproduction: To fix the Content on the Platform's servers and on any other medium necessary for its dissemination.

b) Public Communication: To make the Content available to the public through the FotoNEX blog, its social networks, newsletters, and any other online or offline dissemination medium that FotoNEX uses for editorial, informative, or promotional purposes.

c) Transformation and Attribution: To carry out formatting, editing, or layout adaptations that are technically necessary for its correct publication. In any public communication of the work, FotoNEX will guarantee the recognition of the Contributor's status as author, by clearly mentioning their name or signature, and respecting their moral right of authorship, except in cases where the Author has requested the erasure of their personal data pursuant to Clause 6.4.3.

6.4.3. Permanence Policy and Right to Erasure (Right to be Forgotten): By virtue of the irrevocable and perpetual licence granted, the Author understands and accepts that the published Blog Content will remain on the Platform indefinitely as part of its editorial archive and digital library. Consequently, it will not be possible to request the removal or withdrawal of the editorial Content in its entirety.

Notwithstanding the above, and in compliance with data protection regulations, the Author may at any time exercise their right to erasure over the personal data that identifies them and that has been published along with the Content, in accordance with Article 94 (Right to be forgotten in social network services and equivalent services) of the Organic Law on the Protection of Personal Data and Guarantee of Digital Rights.

The exercise of this right will be materialised through the anonymisation of the Content, with FotoNEX proceeding, upon simple request from the Author, to delete the following personal data associated with it:

• Author's first name and surname.
• Profile picture or any identifying image.
• Biography or any personal descriptive text.
• Links to the Author's personal websites, professional profiles, or social networks.

Once anonymised, the Content may remain published with a generic attribution (e.g. "FotoNEX Contributing Author") or without any attribution, at FotoNEX's discretion.

This right to the erasure of personal data may be limited when maintaining the Author's identity is necessary for the exercise of the right to freedom of expression and information, or for reasons of overriding public interest, in accordance with the exceptions provided for in data protection regulations and applicable case law (such as STC 89/2022).

7. Limitation of Liability

Given that FotoNEX does not intervene in the physical execution of the service, it does not guarantee nor is it responsible for:

a) The attendance, punctuality, or behaviour of the Photographer ("No-Shows").

b) The technical quality, style, or aesthetic result of the photographs delivered.

c) The loss or corruption of digital files due to failures in the Photographer's equipment.

d) Any personal injury or material damage caused by the Photographer during the event.

Any claim related to the provision of the service must be directed exclusively against the Photographer.

8. Indemnification and Platform Indemnity

You agree to defend, indemnify, and hold harmless FotoNEX, its affiliates, licensors, and service providers, and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable solicitors' fees) arising out of or relating to: Your violation of these Terms or any applicable law or regulation; Your use of the Platform, including, but not limited to, your Content; Your breach of any agreement with a Photographer or Client facilitated through the Platform; Your provision of services as a Photographer or the receipt of services as a Client; Any claim that your Content infringes the intellectual property rights or other rights of any third party.

9. Regulatory Compliance and Tax Transparency (DAC7) 

The User (Photographer) acknowledges and accepts that, pursuant to Directive (EU) 2021/514 (DAC7) and current tax regulations, FotoNEX has a legal obligation to collect, verify, and communicate to the Tax Agency information regarding the identity, activity, and income generated by sellers on the platform. The Photographer expressly consents to the processing and transfer of their tax data to the competent authorities and exempts FotoNEX from any liability arising from compliance with this legal obligation.

10. Governing Law and Dispute Resolution

This clause governs the resolution of any dispute arising from the use of the Platform. A different procedure is established depending on the nature of the User's relationship with FotoNEX.

10.1. Prior Amicable Resolution: Before initiating any formal proceedings, both the User (Client or Photographer) and FotoNEX undertake to attempt to resolve any dispute amicably. To this end, the party raising the dispute must notify the other party, initiating a period of good-faith negotiation of thirty (30) calendar days. Communications to FotoNEX shall be directed to its customer service department.

10.2. Governing Law: These Terms of Service shall be governed by and construed in accordance with the laws of the Kingdom of Spain. However, if you are a Client with the status of a consumer, the choice of Spanish law shall not deprive you of the protection afforded to you by the mandatory provisions of the law of your country of habitual residence, in accordance with Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).

10.3. Jurisdiction and Dispute Resolution Procedures

a) Disputes between FotoNEX and Photographers (Professional B2B Relationship): For any dispute arising from these Terms of Service that cannot be resolved amicably, the Photographer and FotoNEX agree to submit, expressly waiving any other jurisdiction that may correspond to them, to the jurisdiction of the Courts and Tribunals of the city of Barcelona, Spain. Alternatively, the parties may agree to submit the dispute to binding arbitration administered by the Arbitration Court of Barcelona (TAB), in accordance with its rules in force at the time of the request. The arbitration shall be held in Barcelona in Spanish, and the award issued shall be final and binding.

b) Disputes between FotoNEX and Clients (B2C Consumer Relationship): If you are a Client with the status of a consumer, you have the right to initiate legal proceedings before the competent courts. You may choose to file a claim before:

• The courts and tribunals of the city of Barcelona, Spain.
• The courts and tribunals of your place of domicile.

Furthermore, you are informed about alternative dispute resolution (ADR) mechanisms. Specifically, consumers resident in the European Union can access the European Commission's Online Dispute Resolution (ODR) platform via the following link: https://ec.europa.eu/consumers/odr. Participation in any mediation or arbitration mechanism shall always be voluntary for the consumer and shall not limit their right to seek a judicial solution. In accordance with Spanish legislation, any clause that imposes a penalty or an obstacle to the exercise of consumer rights, including access to justice, shall be null and void.

11. Right of Withdrawal (for EU Consumers)

In accordance with Article 97 of the Consolidated Text of the General Law for the Defence of Consumers and Users, consumers resident in the European Union are informed that, although general regulations provide for a 14-day right of withdrawal for distance contracts, this right does not apply to the provision of services on a specific date or period, as established in Article 103. Therefore, cancellations of bookings are governed exclusively by the policy set out in Clause 4.3 of these Terms.

12. Changes of Terms

FotoNEX reserves the right, at its sole discretion, to modify or replace these Terms at any time. If a revision is material, we will notify you at least 30 days in advance of the new terms coming into effect. What constitutes a material change will be determined at our sole discretion. By continuing to access or use our Platform after these revisions come into effect, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorised to use the Platform.

13. Severability

If any provision of these Terms is held to be invalid or unenforceable by a court or other tribunal of competent jurisdiction, the remaining provisions of these Terms shall remain in force.

14. Entire Agreement

These Terms, together with our Privacy Policy and our Cancellation Policy, constitute the complete and exclusive agreement and understanding between you and FotoNEX with respect to our Platform and supersede and replace any prior agreement, whether oral or otherwise, with respect to the Platform. 

15. Contact Us

If you have any questions about these Terms, please do not hesitate to contact us at info@fotonex.net.