Terms of Service
The Gambar (collectively, “The Gambar,” “we,” “us,” “our”) provides an online booking, payment and matching marketplace that connects photographers and users requiring on-demand photography services (collectively, the “Services”) to you through its website located at https://www.thegambar.com (the “Site”) and related services (collectively, such services, including any new features and applications, and the Site, the “Service(s)”), Client to the following Terms of Service (as amended from time to time, the “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST THE GAMBAR ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
THE SITE INCLUDES AN ONLINE MARKETPLACE THROUGH WHICH PHOTOGRAPHERS (DEFINED BELOW) MAY OFFER PHOTOGRAPHY SERVICES (DEFINED BELOW) AND CLIENTS (DEFINED BELOW) MAY BOOK SUCH PHOTOGRAPHY SERVICES. YOU ACKNOWLEDGE AND AGREE THAT: (1) THE GAMBAR IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN PHOTOGRAPHERS AND CLIENTS, (2) THE GAMBAR ONLY PROVIDES MATCHING AND PAYMENT PROCESSING SERVICES, (3) CLIENTS CONTRACT FOR PHOTOGRAPHY SERVICES DIRECTLY WITH PHOTOGRAPHERS (4) THE GAMBAR IS NOT A BROKER, AGENT (EXCEPT AS EXPRESSLY SET FORTH BELOW) OR INSURER, AND (5) THE GAMBAR HAS NO CONTROL OVER THE CONDUCT OF PHOTOGRAPHERS, CLIENTS, OR ANY OTHER USERS OF THE SITE OR PHOTOGRAPHY SERVICES, AND THE GAMBAR DISCLAIMS ALL LIABILITY IN THIS REGARD. DIFFERENT SECTIONS OF THE SITE AND TERMS OF SERVICE AFFECT PHOTOGRAPHERS AND CLIENTS DIFFERENTLY, SO PLEASE BE SURE TO READ THESE TERMS CAREFULLY.
“User” “you” or “your” means a person, organization or entity using the Services, including Clients and Photographers.
“Client” means a person who completes The Gambar’s account registration process to book a Photographer.
“Photographer” means a photographer who can provide the photography services sought and who is accepted by The Gambar on the Site.
“Photography Services” means photography-related services provided by Photographers.
Access and Use of the Service
As stated above, The Gambar’s Services make available a marketplace with related technology for Clients and Photographers to arrange for the matching of a Client with a Photographer and booking of Photography Services. The Gambar itself does not provide any photography-related services. The Gambar's responsibilities are limited to: (i) facilitating the availability of the Site, and (ii) serving as the limited agent of each Photographer for the purpose of accepting payments from a Client on behalf of the Photographer. There are risks that you assume when dealing with other Users (including those who may be acting under false pretenses). You agree that all of these risks are borne by you, and not The Gambar. The Gambar does not control the behavior of Users or the quality of the Photography Services. As a result, The Gambar does not guarantee or endorse the authenticity, quality, safety, or legality of the Photography Services.
Your Registration Obligations
User Account, Password and Security
You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify The Gambar of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. The Gambar will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Service
The Gambar reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that The Gambar will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage
You acknowledge that Company may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Company’s servers on your behalf. You agree that Company has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Company reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Company reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
The Service includes certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding The Gambar and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your The Gambar account information to ensure that your messages are not sent to the person that acquires your old number.
The Gambar endeavors to match a Client with the most suitable Photographer(s) based on browsing filters provided by the Client. A number of Photographers may be presented as options to a Client as part of the matching process, in which case it is the Client’s responsibility to make the final choice as to which Photographer provides Photography Services. A Client will be able to book the Photography Services though the Site (“Booking”). However, even when a Photographer is matched with or chosen by a Client for a Booking, The Gambar reserves the right to change which Photographer actually provides the Photography Services for a particular Booking, in its sole discretion. The Gambar will endeavor to notify the Client of any such changes in advance.
No Off-Platform Activity
As Photographer, you may not induce Clients to receive services similar to the Photographer Services off the Site. You acknowledge and agree that a substantial portion of the compensation The Gambar receives for making the Site available to you is collected through the The Gambar Fee described in Payment Terms. The Gambar only receives this Fee when a Client and a Photographer pay and receive payment through the Site. Therefore, from the time you identify or are identified by any party through the Site, you must use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party.
If you breach this obligation with respect to each Client-Photographer relationship, you agree that the one or both of the Client or Photographer shall pay The Gambar for each such off-platform relationship by paying an “Off-Platform Activity Penalty” totaling RM5,000 per off-platform relationship.
To pay the Off-Platform Activity Penalty, you must request instructions by contacting The Gambar using the contact details below.
Except if you pay the Off-Platform Activity Penalty, you agree not to circumvent the Payment Terms offered by the Site.
Before a Photographer may perform Services through The Gambar, the Photographer is required to consent to a background check to screen for criminal history that may present a safety risk to The Gambar or Clients. Photographer accounts will not be eligible for activation if the background check reveals any criminal or other history that may present a safety risk to Service Providers, including, without limitation, violent crimes, felonies, drug-related offenses, sexual offenses, theft or property damage offenses. The Gambar reserves the right to disqualify or refuse service to any Photogrpaher for any reason, unless prohibited by law.
By agreeing to these Terms of Service as a Photographer, I hereby consent to the preparation of background reports regarding me by a third party and the release of such reports to The Gambar and its designated representatives, to assist The Gambar in determining my eligibility to use the Services and at any time to assist The Gambar to evaluate my continued compliance with these Terms of Service. To this end, I hereby authorize, without reservation, any law enforcement agency or court, educational institution, motor vehicle record agency, credit bureau or other information service bureau or data repository, or employer to furnish any and all information regarding me to The Gambar and/or its agents, and authorize The Gambar’s agents to provide such information to The Gambar.
The report may include, but is not limited to, criminal and other public records and history; public court records; motor vehicle and driving records; professional disciplinary actions; drug/alcohol test results; and address history, Client to any limitations imposed by applicable law. This information may be obtained from public record and private sources, including credit bureaus, government agencies and judicial records, and other sources.
Photographer agrees that certain confidential information (including, without limitation, photography guides, information packages, computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information) that Photographer learns or obtains in connection with the Services, constitute “Proprietary Information.” Photographer will hold in confidence and not disclose or, except in performing the Services, use any Proprietary Information. Photographer will prevent unauthorized access to or disclosure of the Proprietary Information using at least the same degree of care as Photographer uses to protect its own most sensitive proprietary information (which will not be less than a reasonable degree of care). However, Photographer shall not be obligated under this paragraph with respect to information Photographer can document is or becomes readily publicly available without restriction through no fault of Developer. Upon termination and as otherwise requested by The Gambar, Photographer will promptly return to The Gambar all items and copies containing or embodying Proprietary Information.
Other Photographer Obligations
As a Photographer, you must provide The Gambar with any information requested in order for The Gambar to match you to a Client, such as information on your background, experience and skills, sample photos taken by you, contact details and your headshot. You must also provide The Gambar with up to date, complete and accurate information regarding the days and times you are available to complete Bookings and must ensure that this information remains accurate and current at all times. Once you are matched with a Client you have the right to turn down the job, but The Gambar has sole discretion to determine if such refusal will harm your ability to be matched in the future. The Gambar may also request that you submit a portfolio of previous works. The Gambar has sole discretion as to which photographers are accepted into the marketplace and we reserve the right to reject any potential Photographer and remove any Photographer from the marketplace for any reason. The Gambar may, but is not required to, conduct background checks on Photographers.
EACH PHOTOGRAPHER IS SOLELY RESPONSIBLE FOR OBTAINING ALL PERMITS, LICENSES AND OTHER PERMISSIONS REQUIRED TO OFFER OR PROVIDE ANY PHOTOGRAPHY SERVICES OR OTHER PHOTOGRAPHER-PROVIDED SERVICES AND THE GAMBAR ASSUMES NO RESPONSIBILITY FOR A PHOTOGRAPHER'S FAILURE TO OBTAIN SUCH PERMITS, LICENSES OR PERMISSIONS OR OTHERWISE COMPLY WITH ANY APPLICABLE LAWS, RULES OR REGULATIONS.
Nothing in this Agreement will in any way be construed to constitute Photographer as an agent, employee or representative of the The Gambar, but Photographer will perform the Services hereunder as an independent contractor. Photographer acknowledges and agrees that Photographer is obligated to report as income all compensation received by Photographer pursuant to this Agreement, and Photographer agrees to and acknowledges the obligation to pay all self-employment and other taxes thereon and that he will not be eligible for any employee benefits (nor does he desire any of them) and expressly waives any entitlement to such benefits. Photographer acknowledges and agrees that he will use his own discretion in performing the tasks assigned, within the scope of work specified by the Company.
You understand and agree that The Gambar is neither an insurer nor a contracting agent or employer for you as a Photographer. If a Client purchases any of your Photography Services, any agreement you enter into with such Client is between you and the Client and The Gambar is not a party thereto. Notwithstanding the foregoing, The Gambar serves as your limited authorized agent for the purpose of accepting payments from Clients on your behalf and The Gambar is responsible for transmitting your portion such payments to you. You acknowledge and agree that, as a Photographer, you are responsible for your own acts and omissions. Each Photographer understands the fact that The Gambar does not offer any medical coverage for bodily harm or injury that may result from providing the Photography Services. The Gambar will not reimburse for any medical bills, transportation or loss of wages as a result of the injury or for any accommodations.
The Gambar will have the sole discretion to issue a monetary penalty to Photographer if Photographer cancels a shoot with a Client without reasonable notice, does not show up for a scheduled shoot with a Client, or otherwise fails to perform obligations through no fault of The Gambar or Client.
Each Client agrees to pay all applicable fees for Photography Services, Service tax, transaction fees and fees for any digital downloads or prints purchased either through a package or after the completion of the Photography Services (“Purchased Prints”) as set forth on the Site (collectively, “Photographer Fees”). All Photographer Fees are payable in the currency specified on the Site at the time of Booking. If a Client requests amended Photography Services, including but not limited to changes to the time, location or type of Photography Services provided (“Variation”), a change fee may be charged. All change fees are payable before any Variations will be accepted and performed.
Except as otherwise expressly set forth herein or as expressly approved by The Gambar in writing in its sole discretion, all payments made are final and non-refundable and the Client shall not have the right to cancel its purchase for any reason. If you make a payment by credit card or other payment instrument, you represent and warrant to Company that such information is true and that you are authorized to use such payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Company the amount that is specified on the Site for Photographer Fees and in accordance with the terms of such fees and purchases and this Terms of Service.
The Gambar will facilitate payment to a Photographer’s nominated bank account the total Photographer Fees accrued for the Photography Services provided to a Client by such Photographer during the preceding payment period, less the fee payable to The Gambar for referring the Client(s) to such Photographer as set forth in terms provided to Photographers at the time of their onboarding (“The Gambar Fee”). The Gambar has sole discretion to act on behalf of the Client, and to not pay Photographer Fees, if the Client reports that the Photography Services were not provided or adequately completed. This may include but is not limited to circumstances where a Photographer did not arrive for a Booking or photos were of insufficient quality for use. The Gambar will independently review such cases, seeking input from the Client and/or the Photographer in its sole discretion, and may decide at its sole discretion to issue a refund to the Client.
Limited Payment Collections Agent
Each Photographer appoints The Gambar as the Photographer’s limited payment collection agent solely for the purpose of accepting the Photographer Fees from the Client. Each User agrees that payment of Photographer Fees in respect of a Photographer by a Client to The Gambar, as that Photographer’s limited payment collection agent, shall be considered the same as a payment made directly by that Client to the relevant Photographer and the Photographer will provide the relevant Photographer Services to the Client, as outlined on the Site, as if the Photographer had received payment directly. The Gambar, as limited payment collection agent for the Photographer, agrees to facilitate the payment of any Photographer Fees for Photography Services provided. In the event that The Gambar does not remit such amounts, the Photographer will have recourse only against The Gambar.
Conditions of Use
You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by The Gambar. The Gambar reserves the right to investigate and take appropriate legal action against anyone who, in The Gambar’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
a) email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of The Gambar, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose The Gambar or its users to any harm or liability of any type;
b) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
c) violate any applicable local, state, national or international law, or any regulations having the force of law;
d) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
e) solicit personal information from anyone under the age of 18;
f) harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
g) advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
h) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
i) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
Intellectual Property Rights
Service Content, Software and Trademarks
You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by The Gambar, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by The Gambar from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of The Gambar, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by The Gambar.
The “The Gambar” name and logos are trademarks and service marks of The Gambar (collectively the “The Gambar Trademarks”). Other The Gambar product and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to The Gambar. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of The Gambar Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of The Gambar Trademarks will inure to our exclusive benefit.
Photographer acknowledges and agrees that the photographs, digital negatives, camera RAW files, other original data files pertaining to the photos and images produced as a result of the Photography Services for a Client as a result of a Booking contain content or features that are protected by copyright, trademark, trade secret or other proprietary rights and laws. Photographer hereby assigns (and agrees to assign) all content and and all related intellectual property and proprietary rights to The Gambar. Photographer shall further assist The Gambar, at The Gambar’s expense, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce, and defend any rights specified to be so owned or assigned. Upon full receipt of all applicable Photographer Fees, The Gambar agrees to assign, transfer and convey to the Client all content resulting from the service(s) provided. For clarity, all content and associated products of service(s) that is not purchased by Client remains the property of The Gambar.
Clients hereby grant The Gambar a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to use, copy, display and distribute the content and associated service(s) products for marketing and advertising purposes. The Gambar will inform Clients if it intends to use photos in this way, to provide an opportunity for any reasonable objections to be taken into account. Photographers may request that The Gambar provide a limited intellectual property license for the purpose of using photos in the Photographer’s portfolio of work or for other purposes by seeking prior written consent from both The Gambar and the relevant Client.
Third Party Material
Under no circumstances will The Gambar be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that The Gambar does not pre-screen content, but that The Gambar and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, The Gambar and its designees will have the right to remove any content that violates these Terms of Service or is deemed by The Gambar, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Transmitted Through the Service
With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content, you hereby grant and will grant The Gambar and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
Clients may rate a Photographer and their Photography Services (“Photographer Rating”), and Photographers may rate a Client (“Client Rating”), in each case using the multidimensional rating system provided on the Site (collectively, “Rating”). Clients may also provide written feedback to The Gambar regarding Photographers and their Photography Services purchased by such Client (“Review”). You may only leave a Rating or submit a Review once the Photography Services have been provided for the relevant Booking. The Gambar can remove a Rating at any time, in its sole discretion. A Client must provide true, fair and accurate information in their Review.
You acknowledge and agree that any Rating, Review, questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to The Gambar are non-confidential and The Gambar will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. The Gambar’s rights to such Submissions includes, but is not limited to, creating an aggregate rating from the Ratings it receives and showing Users such aggregated ratings.
You acknowledge and agree that The Gambar may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of The Gambar, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Partner Referrals and Subsidies
The Gambar may work with authorized third-party partners ("Partners") to permit Partners to refer Clients to The Gambar through The Gambar's online enterprise portal, and Partners may elect to subsidize these shoots to give Clients a discount on Photography Services, Photo Editing Services, or other Services (a "Subsidy"). Clients may share these photos and details about their shoots with a Partner by clicking the appropriate box on the checkout page. Clicking this box grants the Partner a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to use, copy, display and distribute the Photograph Content, associated Photograph IP, and shoot details from such Booking for any purpose (the "Partner License"). If a Subsidy is offered, Client must grant the Partner License to receive the Subsidy.
The Gambar respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify The Gambar of your infringement claim in accordance with the procedure set forth below.
The Gambar will process and investigate notices of alleged infringement and will take appropriate actions under Malaysia intellectual property law and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to The Gambar’s Copyright Agent at firstname.lastname@example.org (Client line: “Takedown Request”).
To be effective, the notification must be in writing and contain the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
your physical or electronic signature;
identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, The Gambar will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy
In accordance with Malaysia intellectual property law and other applicable law, The Gambar has adopted a policy of terminating, in appropriate circumstances and at The Gambar's sole discretion, users who are deemed to be repeat infringers. The Gambar may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Third Party Websites
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. The Gambar has no control over such sites and resources and The Gambar is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that The Gambar will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that The Gambar is not liable for any loss or claim that you may have against any such third party.
Social Networking Services
In addition, The Gambar is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, The Gambar is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. The Gambar enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
Indemnity and Release
You agree to release, indemnify and hold The Gambar, and if you are a Photographer, hold Clients, and their affiliates and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another.
Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE GAMBAR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
THE GAMBAR MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE GAMBAR WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE GAMBAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL THE GAMBAR’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID THE GAMBAR IN THE LAST SIX (6) MONTHS, OR, IF GREATER, FIVE HUNDRED RINGGIT (RM500).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
Dispute Resolution By Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and The Gambar, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and The Gambar are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge.
b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND THE GAMBAR AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND THE GAMBAR AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
To the extent a court or the arbitrator determines that this class action waiver is invalid, for any reason, it shall not be severable from this Terms and the class or collective claims will be considered excluded claims that must be litigated in a civil court of competent jurisdiction Notwithstanding any other clause contained in this arbitration provision, any claim that all or part of the class action waiver is invalid, unenforceable void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The class action waiver shall be severable when a dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration.
c. Pre-Arbitration Dispute Resolution
The Gambar is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by contacting The Gambar using the contact details below. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If The Gambar and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or The Gambar may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by The Gambar or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or The Gambar is entitled.
d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the Malaysian Institute of Arbitrators (MIArb) rules and procedures. For information on the MIArb, please visit its website, http://www. MIArb.com. If there is any inconsistency between any term of the MIArb Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless The Gambar and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by MIArb. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the MIArb Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is RM75,000 or less, at your request, The Gambar will pay all Arbitration Fees. Any payment of attorneys’ fees will be governed by the MIArb Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
You agree that The Gambar, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if The Gambar believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. The Gambar may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that The Gambar may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that The Gambar will not be liable to you or any third party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any other user in connection with the Service and The Gambar will have no liability or responsibility with respect thereto. The Gambar reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms of Service constitute the entire agreement between you and The Gambar and govern your use of the Service, superseding any prior agreements between you and The Gambar with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third party content or third-party software. These Terms of Service will be governed by the laws Malaysia without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and The Gambar agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Malaysia. The failure of The Gambar to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of The Gambar, but The Gambar may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Please contact us via the The Gambar Help Center available at https://www.thegambar.com/contact to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service, the Service, or anything else.