PHOTOGRAPHERS
CONTRIBUTION AGREEMENT
The Nitty Gritty
The Agreement
This Agreement governs the terms by which photographers or other artists
provide photographic, video, and other media content to members of the photoVoyagers community through the web site located at
www.fotoTrip.co.uk (the “Site”).
1.
Background of Agreement
a.
This is a legal agreement between any member intending to upload
data or materials onto the Site (in this agreement referred to as
“you” or the “Supplier”) and operator of the Site,
fotoTrip.co.uk. The Supplier wishes to appoint fotoTrip.co.uk as its
non-exclusive agent to license and distribute Content (as defined below)
produced by the Supplier on the terms and conditions set forth in this
Agreement and fotoTrip.co.uk's form of content license agreement, as such agreement
may be amended from time to time or modified for certain clients consistent
with the rights granted herein (the “Content License Agreement”).
For the purposes of this Agreement, “Content License Agreement”
shall be deemed to include all of the Extended License options and provisions
to which Supplier has opted-in using the administrative tools relating to his
or her account profile on the Site.
b.
Upon accepting the terms of this Agreement, you may make Content
available to fotoTrip.co.uk by following the “Upload” procedures
and policies identified on the relevant portion of the Site. Each upload of
Content will be governed by the terms and conditions of this Agreement, which
will be confirmed by you upon each upload.
c.
This is a fairly lengthy document, and it contains many
important provisions that affect your rights and obligations. By ticking the
correct box at the end of this Agreement and typing “I agree”, you
thereby agree to be bound by the terms of this Agreement. We encourage you to
print a copy of the Agreement for your records.
d.
This Agreement remains in full force and effect until terminated
in accordance with its terms. If at any time the terms and conditions of this
Agreement are no longer acceptable to the Supplier, you must follow the
termination procedures set forth below under “Term and
Termination”.
2.
Provision of Content
a.
The parties acknowledge that the Supplier may, from time to
time, provide information, software, photographs, illustrations, audio files,
video files, animations, flash files, data files, code snippets and other
material to fotoTrip.co.uk using the Upload procedures of the Site or such
other procedures as the parties may mutually agree (collectively,
“Content”). fotoTrip.co.uk, in its sole discretion, may determine
which of such Content is suitable for posting on the Site or other means of
distribution, and only such Content as it deems suitable will be considered
“Accepted Content” for the purposes of applicable provisions of
this Agreement.
b.
In addition to the terms of this Agreement, the parties
acknowledge that the provision of all Content is subject to the policies and
procedures outlined in the Site, the terms of which are incorporated by
reference into this Agreement. Any breach of the rules relating to acceptable
Content outlined in the Site will be deemed to be a breach of this Agreement.
3.
Grant of Authority
a.
The Supplier hereby appoints fotoTrip.co.uk as Supplier's
non-exclusive agent to license royalty-free Content to third parties within the
jurisdictions of fotoTrip.co.uk's business. For all
Content, Supplier grants fotoTrip.co.uk the right to use, reproduce,
distribute, redistribute, publish, republish, upload, post, transmit, crop,
package, repackage, produce and sell prints or similar image products or
publicly perform or display Content to prospective licensees through the Site
or other venues which it may determine from time to time, and the right to
grant perpetual, worldwide, non-exclusive and non-transferable licenses or
sub-licenses to end-users in accordance with the terms of the Content License
Agreement that the Supplier hereby acknowledges
having reviewed and approved.
b.
In addition to the foregoing grant, fotoTrip.co.uk may use
Accepted Content for its own business purposes relating to the promotion of the
Site and its distribution programs, and expand the market for the licensing of
Accepted Content (including, without limitation, the use of the Accepted
Content and the Supplier's registered and unregistered trademarks relating to
Content for marketing, sales and promotional efforts whether on the Site or
through third parties). No compensation shall be due to the Supplier for use of
Accepted Content for such business purposes.
c.
The Parties agree that all rights, including title and
copyright, in and to the uploaded Accepted Content will be retained by the
Supplier, and no title or copyright is transferred or granted in any way to
fotoTrip.co.uk or any third party except as provided in this Agreement and the Content License
Agreement.
Except to its affiliated and associated companies or as specifically permitted
in this Agreement, fotoTrip.co.uk may not distribute Content to any third party
for the purposes of resale or re-license, it being understood that nothing
herein shall restrict fotoTrip.co.uk from providing access to the Site or
Accepted Content to prospective buyers through an application program interface
or other utility so long as all purchases are subject to the Content License
Agreement
4.
Intellectual Property Matters
a.
The Supplier acknowledges that fotoTrip.co.uk prohibits any
Content or any other material that infringes on any patent, trademark,
copyright, trade secret, right to privacy, right to publicity, or any other
applicable law or proprietary right to be uploaded to the Site.
b.
By uploading Content, you are warranting that you own all
proprietary rights, including copyright, in and to the Content. In addition, to
the extent that the Content contains images of people or persons, you represent
and warrant that you have obtained a valid and binding model release from all
required parties. You also warrant
that where required by applicable law, you have also obtained a valid and
binding release relating to any
identifiable property contained in the Content that might sensibly lead to the
identity of or be required by the owner of such property to permit the uses
under the Content License Agreement.
c.
The Supplier agrees that neither fotoTrip.co.uk nor any of its
directors, officers, employees, partners, affiliates or agents shall be liable
for any damages, whether direct, indirect, consequential or incidental, arising
out of the use of, or the inability to use any Content.
5.
Compensation
a.
fotoTrip.co.uk agrees to pay a portion of the fees collected in
respect of Accepted Content that is downloaded or otherwise purchased by
end-users according to the rate schedule set, as it may be modified from time
to time (the “Rate Schedule”) and the licensing of Content recorded
by fotoTrip.co.uk. The parties acknowledge that the Rate Schedule may
differentiate among various types of Content, such as still images, Flash
files, video footage or otherwise in accordance with its terms. The Rate
Schedule is subject to change in the sole discretion of fotoTrip.co.uk in the
ordinary course of its business without notice by posting such changes on the
Site. If at any time the Rate Schedule is not acceptable to the Supplier, you
may refrain from providing additional Content or terminate this Agreement in
accordance with its terms.
b.
In response to a written request, fotoTrip.co.uk will endeavor to make payment of fees in respect of purchased
downloads of Accepted Content on a monthly basis on or about the 15th day of
the month following the purchase of Accepted Content provided such fees
aggregate a minimum of £50.00, failing which fees owing will be retained until
they exceed such minimum. In all cases, payment of fees to the Supplier will be
net of: (i) applicable taxes or other withholdings
required by applicable law; (ii) bad debts or other uncollectible sums; (iii)
legal and other reasonable fees incurred in enforcing this Agreement or the Content License
Agreement;
(iv) where purchases or licenses are by other than the credit system, fees
payable to financial institutions for the processing of any credit card, debit
card, e-cheque or alternative payment method; and (v) any amounts owing by the
Supplier to fotoTrip.co.uk under this Agreement or otherwise. Without limiting
the generality of the foregoing, fotoTrip.co.uk is entitled to set-off against
any amount owing to Supplier, all amounts to which fotoTrip.co.uk is or may be
entitled under this Agreement or otherwise at law, including withholding
amounts as security for any pending or threatened claim relating to any matter
which is the subject of a representation, warranty or indemnity of Supplier
under this Agreement.
6.
Passwords
You acknowledge and
agree that you will be responsible for each and every access or use of the
Upload portions of the Site that occurs in conjunction with your Member Name
and such passwords, and that fotoTrip.co.uk is authorized to accept your Member
Name and password as conclusive evidence that you wish to upload Content
pursuant to this Agreement. fotoTrip.co.uk shall have no liability or
responsibility to monitor the provision of Content under your member name and
password.
1.
Managing Content
fotoTrip.co.uk does
not and cannot review all communications or Content uploaded to the Site and is
not responsible for the content, quality, or consequences of your uploading
such communications or Content. Notwithstanding the foregoing, fotoTrip.co.uk
reserves the right to delete, move, refuse to accept or edit any communication
or Content that it may determine, in its sole discretion, violates or may
violate this Agreement, the intellectual or proprietary rights of others, any
of its policies or is otherwise unacceptable in its discretion, and you hereby
agree to forfeit any fees payable in respect of such Content to fotoTrip.co.uk
or as it may direct. fotoTrip.co.uk shall have the right but not the obligation
to correct any errors or omissions in any Content, as it may determine in its sole
discretion. You acknowledge that any screening of Content performed by
fotoTrip.co.uk to determine Accepted Content is done as a courtesy only.
NOTICE: You acknowledge that the Content you provide pursuant to this Agreement
that becomes Accepted Content may be purchased or licensed by members with the
intention that such licensees will adhere to the terms of the Content License
Agreement.
fotoTrip.co.uk cannot take responsibility for the compliance by purchasers and
licensees of the terms of such agreements, and you acknowledge and agree to the
possibility of Content being used in a manner that is not contemplated in this
Agreement or the Content License Agreement. You also agree that notwithstanding any
rights you may have to pursue the licensees of such Content at law,
fotoTrip.co.uk shall have no liability to you or any person claiming through
you for any breach by a licensee of the terms of any agreement respecting
Accepted Content. fotoTrip.co.uk will use commercial efforts to assist in the
protection of your intellectual property rights, at your request and expense.
2.
Confidential Information
a.
The Supplier acknowledges that the Confidential Information
(defined below) which it obtains through the entering into of this Agreement,
the use of the Site and the provision of Content constitutes valuable,
confidential, proprietary information of fotoTrip.co.uk and its licensors, and
agrees that during the term of this Agreement and thereafter it shall not,
without the express written consent of fotoTrip.co.uk, use or disclose to any
other person any such Confidential Information, except as specifically
authorized under this Agreement.
b.
For the purposes of this Agreement, “Confidential
Information” means any and all data, information, documents, software or
materials relating to the business and management of fotoTrip.co.uk, its
members, affiliates, licensors or licensees, that is designated as confidential
or ought reasonably to be considered confidential, including but not limited
to: their business model and operations, processes, products, designs, pricing,
promotions, business plans, business opportunities, finances, research,
development, know-how, trade-secrets, training materials, personnel, identities
or personal information of any kind pertaining to members, clients,
methodologies, Site content belonging to others and other intellectual
property.
1.
Representations and Warranties
a.
The Supplier hereby represents and warrants as follows:
1.
The Supplier has the legal capacity and authority to enter into
this Agreement, is the sole and exclusive owner of the Content, has the right
to grant all of the license rights contemplated to be provided under this
Agreement, and has not granted any rights or licenses to any Content or any
other intellectual property or technology that would conflict with this
Agreement;
2.
No portion of the Content as delivered to fotoTrip.co.uk from
time to time, contains any disabling mechanism or protection feature designed
to prevent its use, copying or enjoyment in the manner contemplated in this
Agreement, and all Content will be free of any virus, worm, lock, or other
mechanism or device that may be used to modify, delete, damage or disable the
Site or the Content or any other hardware or computer system, or which would
otherwise render inaccessible or impair the use of the Content or the Site in
any way;
3.
The Content will include all necessary descriptive information
to enable its effective marketing on the Site, which information will be
complete and accurate in all material respects and will not include false,
misleading or inapplicable metadata intended to or which has the effect of
keyword “doping” or improperly altering search results that would
otherwise be applicable to such Content; and
4.
The Content delivered to fotoTrip.co.uk hereunder represents
original creations and expressions of subject matter, and no Content infringes
any copyright, trademark, right of privacy or right of publicity or other
proprietary right of any third party, or defames or casts into disrepute in any
manner any third party.
2.
Indemnity
a.
You agree to indemnify, defend and hold fotoTrip.co.uk and its
affiliates, and their respective directors, officers, employees, shareholders,
agents and licensees of Content (collectively, the “fotoTrip.co.uk
Parties”) harmless from and against any and all claims, liability,
losses, costs and expenses (including reasonable legal fees on a solicitor and
client basis) incurred by any fotoTrip.co.uk Party as a result of or in
connection with: (i) any use or alleged use of the
Site or provision of Content under your Member Name by any person, whether or
not authorized by you; (ii) or resulting from any communication made or Content
uploaded under your Member Name; (iii) any breach by you of this Agreement; or
(iv) any claim threatened or asserted against any fotoTrip.co.uk Party to the
extent such claim is based upon a contention that any of the Content used
within the scope of this Agreement and the Content License Agreement infringes any
copyrights, trade secrets, trademarks, right of privacy or publicity, or other
intellectual property rights of any third party.
b.
fotoTrip.co.uk reserves the right, at your expense, to assume
the exclusive defense and control of any matter
otherwise subject to indemnification by you, and in such case, you agree to
cooperate with fotoTrip.co.uk's defense
of such claim.
3.
Term and Termination
a.
This Agreement is effective until terminated. You may terminate
this Agreement at any time by giving thirty (30) days written notice to
fotoTrip.co.uk using email or such other means of written notice
acceptable to fotoTrip.co.uk which enables confirmation of your identity and
your intention to terminate. fotoTrip.co.uk may also terminate this Agreement
for any reason by giving you thirty (30) days notice by e-mail at the last
address contained in your membership information. If fotoTrip.co.uk terminates
your membership pursuant to the terms of the Membership Agreement, such
termination shall be deemed to be notice of termination of this Agreement, as
well.
b.
Either party may terminate this Agreement upon written notice
effective immediately upon receipt if the other party (i)
liquidates all or substantially all of its assets, dissolves as a corporation
other than through inadvertence, or otherwise ceases to do business in a
material way, or (ii) makes an assignment for the benefit of creditors, or
(iii) files a petition in bankruptcy, petitions or applies for a receiver or
trustee for all or any substantial part of its property and such receiver or
trustee is appointed, or commences, or has commenced against it, a proceeding
under any bankruptcy, reorganization, readjustment of debt, dissolution, or
liquidation law or statute of any jurisdiction, any of which shall remain in
force for a period of thirty (30) days or more, or (iv) is adjudicated
insolvent or bankrupt, or (v) is in breach of this Agreement.
c.
In addition, fotoTrip.co.uk may deem an account to be terminated
and may off-set any fees or credits contained in such account against its costs
of administration if there has been: (i) in the
reasonable opinion of fotoTrip.co.uk, any material misrepresentation made as to
the capacity, identity or copyright ownership of Content or the Supplier
provided hereunder; or (ii) no log-in or other activity in the account for 24
months despite reasonable commercial efforts to contact Supplier based on the
information provided through the Site as part of the account profile of such
Supplier.
4.
Effect of Termination
a.
Upon the termination of this Agreement, the grant of authority
given to fotoTrip.co.uk shall cease subject to the following conditions: (i) fotoTrip.co.uk shall remove Accepted Content from the
Site within thirty (30) days of the termination of this Agreement; (ii)
notwithstanding termination, fotoTrip.co.uk shall have the right to continue
licensing Accepted Content until it is removed from the Site; and (iii)
regardless of the expiration or termination of this Agreement, fotoTrip.co.uk
will continue, in accordance with this Agreement, to pay compensation due to
the Supplier in respect of licenses granted to members during any transitional
period, subject to any rights of set-off under this Agreement or at law.
b.
Upon termination, fotoTrip.co.uk will be entitled to retain all
amounts owing to the Supplier for a period of thirty (30) days to determine any
applicable rights of set-off, and shall be entitled to deduct from such
amounts, a reasonable administrative fee for establishing, managing and
terminating your account.
c.
Notwithstanding any other provision in this Agreement, the
termination or expiration of this Agreement shall not alter or affect the
rights granted to licensees or sub-licensees by fotoTrip.co.uk pursuant to this
Agreement.
d.
Termination of this Agreement shall operate without prejudice to
the fotoTrip.co.uk's rights, defences and limitations
of liability provided under this Agreement, the Membership Agreement or the
Terms of Use, which rights, defenses and limitations
of liability shall survive termination of this Agreement. In addition, the
provisions of this Agreement relating to: Managing Content, Confidential
Information, Representations and Warranties, Indemnity, Disclaimer of
Warranties and all limitations of liability, shall survive termination of this
Agreement and continue in full force and effect.
5.
DISCLAIMER OF WARRANTIES
a.
THE SITE, INCLUDING ANY CONTENT CONTAINED THEREIN, ARE PROVIDED
BY FOTOTRIP.CO.UK “AS IS” WITHOUT REPRESENTATION, WARRANTY OR
CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO
THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR
FITNESS FOR A PARTICULAR PURPOSE. FOTOTRIP.CO.UK DOES NOT REPRESENT OR WARRANT
THAT THE SITE OR THE CONTENT WILL BE MADE AVAILABLE FOR
b.
FOTOTRIP.CO.UK DOES NOT REPRESENT OR WARRANT THAT THE SITE OR
ANY CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE SITE WILL BE FREE OF VIRUSES
OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
6.
LIMITATION OF LIABILITY
a.
YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE
INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED
THEREIN.
b.
IN NO EVENT SHALL FOTOTRIP.CO.UK OR ANY OF ITS DIRECTORS,
OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES BE LIABLE FOR
ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES
WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF
BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY
CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF
THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS
TO, OR EXPLOITATION OF THE SITE, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS
GRANTED TO YOU HEREUNDER, EVEN IF FOTOTRIP.CO.UK HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT
(INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR
OTHERWISE.
c.
IN ANY EVENT, FOTOTRIP.CO.UK'S TOTAL MAXIMUM AGGREGATE LIABILITY
UNDER THIS AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL
PART OF THE SITE OR THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO
THE FEES COLLECTED BY FOTOTRIP.CO.UK FOR THE CONTENT THAT IS THE SUBJECT MATTER
OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED ONE THOUSAND ($1,000.00) UNITED
STATES DOLLARS.
d.
SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION
OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION
OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF
FOTOTRIP.CO.UK OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS,
PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED
BY LAW.
7.
Applicable law
a.
The Site is controlled, operated and administered by
fotoTrip.co.uk from within the
b.
You consent to service of any required notice or process upon
you by email, registered mail or overnight courier with proof of delivery notice,
addressed to the address or contact information provided by you at the time you
are first granted access to the membership portions of the Site. You agree to
waive any right you may have to (i) trial by jury;
and (ii) to commence or participate in any class action against fotoTrip.co.uk
related to the Site or this Agreement.
c.
Any and all disputes arising out of, under or in connection with
this Agreement, including without limitation, its validity, interpretation,
performance and breach, shall be submitted to arbitration in
d.
If fotoTrip.co.uk is obligated to go to court or arbitration to
enforce any of its rights, or to collect any fees, you agree to reimburse
fotoTrip.co.uk for its legal fees, costs and disbursements if fotoTrip.co.uk is
successful.
8.
General
a.
You specifically agree and acknowledge that you have, in
addition to the terms of this Agreement, reviewed the terms of the Membership
Agreement and Terms of Use and any other agreements which may be incorporated
by reference therein, and to the extent of their incorporation in this
Agreement you agree to be bound by them.
b.
fotoTrip.co.uk's failure to insist
upon or enforce strict performance of any provision of this Agreement shall not
be construed as a waiver of any provision or right.
c.
This Agreement is personal to you and is binding upon your
heirs, executors and legal representatives, as the case may be, and is not
assignable by you without fotoTrip.co.uk's prior
written consent. fotoTrip.co.uk may assign this Agreement without your consent
to any other party so long as such party agrees to be bound by its terms.
d.
If all or part of any provision of this Agreement is wholly or
partially unenforceable, the parties or, in the event the parties are unable to
agree, a court of competent jurisdiction, shall put in place of such whole or
part provision an enforceable provision or provisions, that as nearly as
possible reflects the terms of the unenforceable whole or part provision.
e.
This Agreement can be amended by the written agreement of the
parties or by fotoTrip.co.uk posting amendments on the Upload portion of the
Site. Continued provision of Content or failure to terminate this Agreement
within thirty (30) days of posting of such amendment will be deemed to be
acceptance of the amendment by the Supplier and it will be incorporated by
reference into this Agreement.
f.
The parties have requested that this Agreement and all related
documents be drawn up in English. Les parties ont
demand que cette convention
ainsi que tous les documents qui s'y rattachent soient en anglais.
1.
Acknowledgement
YOU ACKNOWLEDGE THAT
YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN
© fotoTrip.co.uk Inc. 2005-2006.