Scoopshot.com Terms of Service February 5th, 2015
1. Parties and subject of the Agreement
1.1. This agreement (“the Agreement”) is applicable to the contractual relations between P2S Media Group Inc. (“Scoopshot”) and the Users and concerns the right of the Users to use Scoopshot´s Internet-based Service.
1.2. By this Agreement, Scoopshot grants the User the right to use the Service. By accepting these terms of delivery and use, the Parties enter into the Agreement.
A Photo shooting assignment, open to all (or selected) Users, created by the Buyer through the Service. The terms of delivery and use of any Photo submitted in response to an Assignment are defined within the Assignment. The Assignment may also be a competition, in which the Sellers are asked to take a Photo of a certain event. The Buyer will decide the winner(s) of said competition and the winner(s) will receive a reward predefined by the Buyer.
A User who, under this Agreement, acquires rights to either license or Purchase the Photos by creating Assignments.
A license is the acquisition by the Buyer of limited rights to use the Photo from the Seller and does not include the acquisition of copyright.
The platform whereby Scoopshot makes Photos available to Users for License or Purchase.
A photo, or a package of several photos, which can be downloaded via the Service. It is a digital photograph or video file, which has been taken by the Seller with a camera phone, camera or similar device designed for taking photos and/or video.
The price of the License or Purchase of the Photo as specified by the Users. The Seller agrees to the price by delivering the Photo to the Assignment. The Buyer agrees to the price by Licensing or Purchasing the Photo.
The right to acquire exclusive rights to the Photo from the Seller, including copyright, except the Seller reserves the non-exclusive right to use the Photo for portfolio and self-promotion purposes solely.
Means a model release, property release, or any other release in respect of a third party right (including without limitation any permission or consent relating to names, people, works, trademarks and private property) which is required under any applicable law for the publishing or other use of any Photo.
A User, who owns the rights (including copyrights) in a Photo and offers the Photo for License or Purchase through the Service. The Seller may be the original creator of the Photo or a person or company who has bought the rights to the Photo.
A service provided by Scoopshot, which provides a Marketplace that supplies Photos and Assignments between the Users of the Service.
A person who uses the Service who can be either a Seller and/or a Buyer. A User can be either a private person of at least 18 years of age or a legal entity (e.g. company, association etc.). Private persons below 18 years of age must register for the Service with a parent or guardian.
3. Obligation to register and User password responsibility
3.1 The User must agree to these terms in order to use the Service. The User must also register with the Service.
3.2 A person who, because of his/her age, is not authorized to enter into this Agreement or a person who according to the laws of his/her domicile or the country where he/she uses the Service has been by law or otherwise denied the right to receive or use the Service, may not use the Service or register with the Service.
3.3 During registration, the User shall choose a personal password. The User shall be responsible for ensuring that no third party has access to the password, and shall be personally responsible for the use of the Service under the password. Scoopshot shall be entitled to change the User’s password. Scoopshot shall also have the right to deny the User access to the Service without any reason.
3.4 Print and save a copy of these terms for yourself.
4. Scoopshot as the platform for Sellers and Buyers of Photos or Assignments
4.1 Scoopshot forwards Assignments created by the Buyers to the Users through the Service. A service fee for creating an Assignment can be charged to the Buyer.
Notices will be sent to all Users (or the ones selected by the Buyer) who have informed Scoopshot through the Service of their desire to be notified of Assignments. Notices of location based Assignments will be sent to only those Users who have agreed to let Scoopshot use their location information.
Assignments may not be illegal, defamatory or encourage offensive or inappropriate behaviour or endanger the User. Scoopshot may always, at its sole discretion, remove an Assignment which it considers contrary to the rule of law or to encourage offensive or inappropriate behaviour or for any reason at its sole discretion. If an Assignment is removed, the remuneration for the Assignment shall not be returned.
4.2 A Seller who takes a Photo in accordance with the Assignment shall have the right to offer it electronically through the Service, for the price specified in the Assignment, for either a License or a Purchase by the Buyers. The Buyer is always free to choose whether to License or Purchase the delivered Photo or not.
4.3 NOTE: The Seller (and any other User) shall be deemed an independent third party contractor, and shall under no circumstances be considered an employee of Scoopshot or the Buyer or their affiliates (regardless of the Assignment or the number of Assignments). No User shall have the right to conclude any agreements or otherwise act on behalf of Scoopshot or any other Party. Scoopshot has adopted and implemented the Scoopshot Copyright Policy in accordance with the Digital Millennium Copyright Act. For more information, please read our Copyright Policy.
5. Scoopshot’s rights to the Photo in connection with the Service
5.1 The Seller agrees that any Photo submitted in response to an Assignment shall be available for License or Purchase for a period of 48 hours from the Assignment’s end date (“the Exclusive Rights Period”).
5.2 Should no Buyer License or Purchase the Photo from the Seller within the Exclusive Rights Period, the rights in the Photo revert to non-exclusive rights, where by multiple Buyers can purchase a license to use the Photo.
5.3 After the Exclusive Purchase Period has lapsed, Scoopshot shall have a non-exclusive right to offer the Photo in its Marketplace for licensing by the Seller to potential Buyers through the Service.
5.4 Scoopshot’s right to offer the services of its Marketplace for Sellers to License or Purchase the Photos to the Buyers shall take effect immediately after the Seller has delivered the Photo to the Service.
5.5 Users grant Scoopshot a worldwide, non-exclusive, royalty-free, transferable license to reproduce, distribute, transmit, broadcast, display and to create derivative works of the User’s Photo in connection with its offering of the Services, including for promoting the Service; and /or redistributing the Service and grants Scoopshot all rights, including all rights under copyright to permit a Buyer to either License or Purchase Seller’s Photos for licensing either directly or through third parties in any format and through any distribution channels.
6. Buyer’s rights concerning the Photo
6.1 General terms for all Photos
6.1.1 Scoopshot shall make available to the Buyer, the Purchase and License terms in relation to the Photo as set out in this section 6.
6.2 The following licenses and grants will be made available for purchase:
6.2.1 a ‘Use License’, which grants to the Buyer the right in perpetuity to reproduce, publish, display, transmit, broadcast perform and modify (create derivative works), (collectively “use”) the Photo for any private or public use (including commercial use if Released ) in any media throughout the world provided that any such usage is in accord with any relevant legislation and the terms of this Agreement, in particular clause [6.] concerning any required Releases. For the avoidance of doubt, any Use License shall not prevent Scoopshot or the Seller from granting a similar Use License to other parties.
6.2.2 An’Exclusive Purchase’, grants the Buyer perpetual, unlimited, exclusive rights, including without limitation all rights under copyright to the Photo to reproduce, publish, display, transmit, broadcast perform and to modify (create derivative works), (collectively “use”) the Photo in any media, anywhere in the world, provided that any such use is in accord with any relevant legislation and the terms of this Agreement, in particular clause [6.] concerning any required Releases. The ‘ Exclusive Purchase does not include the moral rights of the Seller. A Photo can only be made available for an “Exclusive Purchase” if the Photo was created using the application made available by Scoopshot as part of the Service.
6.2.3 An ‘Image Embed License’, which grants to the Buyer the right to editorially publish the Photo free of charge on a website, blog or social media platform using an embedded viewer. Scoopshot has the right, at its sole discretion, to remove Photos from the embedded viewer and upon request the User must also stop using the Photo in embedded viewer promptly. Use of embedded Photos outside the context of the embedded viewer is strictly prohibited. Scoopshot or any third party assigned by Scoopshot has the right to collect data related to use of the embedded viewer and embedded Photo.
6.3 Photos do not need to be removed from the Internet or from any other archive after the termination of the right of use according to the licensing terms, and these terms shall not restrict any archive services provided by the Buyer.
6.4 Any Seller of any Photo shall retain the right at all times to use the Photo in personal portfolios and exhibitions regardless of the rights granted to the Buyer.
6.5 All the Photos delivered pursuant to an Assignment, other than those where an Exclusive Purchase has been granted, shall be placed for sale in the Marketplace or through third party distributors after the expiration of the Exclusive Rights Period.
7.1 After the Buyer has delivered his payment for the Photo to Scoopshot, the payment shall be shown on the Seller´s personal user account on the Service. The Seller may request payment to be made when the balance of his/her personal account exceeds 50 USD. Any sums of less than 50 USD shall, at the request of the Seller, be transferred every six months. At the request of the Seller, and if the Seller provides a service fee of 5 USD, Scoopshot will transfer such sums at other times as well. Scoopshot shall transfer the Seller’s share of the payment specified in this Agreement to the Seller within 14 days of the date that the Seller requests such payment from Scoopshot through the Service, and has given all the information needed for payment. Scoopshot has the right to deduct any third party payment fees from the payment.
7.2 The Price specified shall be transferred on the assumption that the payment made by the Buyer is not subject to dispute, i.e., the Buyer agrees that the Photo has been delivered in accordance with the terms of the Service.
7.3 The License or Purchase to the Photo under this Agreement shall be transferred to the Buyer when the price of the Photo has been paid in full to Scoopshot’s account on behalf of the Seller, according to Scoopshot’s terms of payment. The Photo shall be delivered to the Buyer immediately after the payment is made.
7.4 Should the Buyer publish the Photo without obtaining a License (or Purchase) (described in Section 6) for the Photo, a charge of 500% of the Price specified shall be added to the Price to compensate for the unauthorised publishing.
7.5 The amount due to the Seller shall be determined as follows:
7.5.1 In respect of any Photo acquired under a Use License, or an Exclusive Purchase, the Seller shall receive 100% of the Price displayed to the Sender.
7.5.2 In respect of any Photo licensed under an Image Embed License, the Seller shall receive 50% of the amount attributable to Scoopshot for the usage of that Photo under this Image Embed License, after deduction of fees owing to the publisher and the distribution network, if any.
7.5.3 In respect of any Photo for which a license is granted to a buyer by a third party distributor the Seller shall receive 50% of the amount attributable to Scoopshot by the distributor of the Photo.
7.6 Scoopshot may charge a transaction fee for its Services in offering a Marketplace for licensing Images between Seller and Buyer of the licenses. For the avoidance of doubt, Scoopshot is not obligated to share this transaction fee with the Seller.
8.1 The remuneration paid to the Seller for the Photo is taxable income in most countries.
8.2 The Seller shall be obliged to comply with all legislation of their domicile. The Seller shall be liable for ensuring that all prepayments of tax, value added tax (VAT) and other payments are duly remitted in accordance with the applicable legislation.
8.3. Prices specified by the Buyers for the Photos are exclusive of tax. VAT or similar taxes may be added to the selling price depending on the Buyer’s domicile and possible registration for VAT. A Buyer outside the European Union shall be liable for ensuring that all taxes and other payments are duly remitted in accordance with the legislation of their domicile. Scoopshot shall have a right to withhold tax on any payments made to a Seller if such may be necessary to comply with applicable tax legislation.
9. Liability of the Seller
9.1 The Seller shall be responsible for ensuring that the Photo has not been edited or altered after it was taken and that, to the best of the Seller’s knowledge, the subject and the situation depicted in the Photo is authentic.
9.2 The Seller shall be responsible for ensuring that, before delivering the Photo to the Service, no exclusive rights or any other rights to the Photo have been assigned in a way that could conflict with this Agreement or would prevent Scoopshot and/or the Buyer from exercising their rights under this Agreement.
9.3 The Seller unconditionally agrees to abide by all applicable laws and good practices based on industry standards, and to exercise caution when taking the Photo. Furthermore, the Seller alone shall be liable for any damages caused to the Seller or to a third party as a result of the Photo being taken.
9.4 The Seller shall ensure, and for the avoidance of doubt shall be liable for any loss in relation to, that all applicable law has been followed when taking the Photo. The Seller shall especially ensure (without limitation) that when taking the Photo the provisions in all applicable legislation relating to privacy protection and defamation in the Seller’s country of residence, and in the country where the Photo has been taken as well as all other applicable legislation is adhered to. The Seller acknowledges and agrees that Scoopshot is in no way inciting or encouraging the Seller to break any laws or provisions or endanger his/her own health and safety or the health and safety of others when taking the Photo.
9.5 The Seller represents and warrants that he/she has diligently collected the requested model releases of the people identifiably appearing in the Photo submitted to the Service. The Service will always notify the Seller, if the Buyer has requested a model release
9.6 The Seller represents and warrants that he/she owns all rights including copyrights to the Photo as specified in any copyright related legislation in the Seller´s country of residence, and that the Seller has the right to transfer the rights specified in this Agreement to Scoopshot and the Buyer.
9.7 The Seller is liable for ensuring that he/she has not uploaded to the Service any Photo containing material the possession of which or the publication of which would be illegal in the country where he/she has his/her domicile, or that the use or possession of the Photo by Scoopshot in the Service would be illegal.
9.8 The Seller shall be liable for any direct damage caused to other Parties as a result of the licensed use of the Photo. In no event shall the Seller be liable for any indirect or incidental damage or loss unless the damage has been caused wilfully or gross negligently.
9.9 The Seller shall solely be liable for the Photo and any consequences due to publication or presentation of the same in the Service. Scoopshot shall not support any Photo or any opinion, recommendation or advice given in connection with the Photo. Scoopshot shall have no responsibility whatsoever for the Photo or publication of the Photo in the Service. For the sake of clarity, it should be stated that the Seller shall have no responsibility related to use of the Photo (outside the Service) when the publishing rights to the Photo have been purchased through the Service. The Buyer shall be responsible, as set forth in Section 10.3, that use of the Photo complies with all applicable legislation and that publication of the Photo complies with normal publishing practices and good practices in general.
9.10 The Seller agrees to defend, indemnify and hold Scoopshot and any Buyer harmless against any claims or damages (including reasonable attorney’s fees and costs) resulting from the Seller’s failure to comply with the provisions of this Section 9.
10 Liability of the Buyer
10.1 The Buyer shall be liable for any damage caused to other Parties by any use of the Photo that conflicts with applicable legislation or this Agreement.
10.2 For the purpose of assigning the publishing rights, the Buyer shall be liable for ensuring that the Photo is not used, without separate agreement, in any other publications of the Buyer or any third party in a way that conflicts with the Agreement.
10.3 The Buyer agrees that in using any Photo, it shall comply with all applicable law, and further that a Photo of a person will not be published in a way injurious to his/her personal reputation or privacy defamatory, or so that it violates any applicable legislation. The Buyer shall ensure (and for the avoidance of doubt shall be liable for any loss in relation to not ensuring), that the use of the Photo complies with all applicable legislation and that publication of the Photo complies with normal publishing practices and good practices in general.
10.4 The Buyer acknowledges and agrees that the publication of a Photo may, in some instances, require obtaining a Release (e.g. concerning names, trademarks, recognizable people, works of art, trademarks or private property). The Buyer acknowledges and agrees that, in the event that the necessary releases are not available, then the Photo may only be published for an editorial use and not used for any advertising, promotional, or commercial use.
10.5 The Buyer agrees to defend, indemnify and hold Scoopshot, Seller and any Seller harmless against any claims or damages (including reasonable attorneys fees and costs) resulting from the Buyers failure to comply with the provisions of this Section 10.
11. Liability of Scoopshot
11.1 THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. SCOOPSHOTAND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, DISTRIBUTORS AND PARTNERS DO NOT WARRANT THAT: (A) THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK.
IN NO EVENT SHALL SCOOPSHOT, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, DISTRIBUTORS OR SUPPLIERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICE (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) ONE-HUNDRED U.S. DOLLARS ($100.00).
11.2 For the purpose of clarity it should be stated that Scoopshot shall not be liable for damage caused to the User or a third party as a result of the use of the Photo. The User shall be liable for damages relating to the Photo as specified in Sections 9, and 10 of this Agreement.
11.3 Scoopshot shall not be liable for obtaining or confirming the existence of any Release, and cannot be aware of existence of any Release or be responsible for any Release, in relation to the use of any names, likeness, trademarks or other intellectual property, or other third party rights in a Photo, that a third party should have obtained for taking or obtaining the Photo. No representation, warranty or condition, express or implied, statutory or otherwise is given by Scoopshot:
(i) in relation to the use of any names, trademarks or other intellectual property, or other third party rights in a Photo, and
(ii) as to the existence of any Release,
and any all such representations, warranties and conditions are excluded save to the extent prohibited by law.
11.4 Scoopshot shall not be liable for the contents of the Photos to be downloaded from the Service. By accepting these terms the User understands and is aware of the fact that he/she may have to deal with Photos that contain incorrect, offensive or immoral information. By accepting these terms the User waives all and any reasonable rights or legal remedies to claim any responsibility on Scoopshot’s part in relation to the contents of such Photos.
11.5 Each User agrees to indemnify Scoopshot, its affiliates, and their respective officers, directors, members, employees and agents, on an after-tax basis in relation to any claims, costs (including properly incurred legal costs and other advisers’ fees), damages, expenses, liabilities and losses, incurred by Scoopshot, arising in any manner whatsoever in relation to that User’s unauthorised taking or use of any Photo (including without limitation the failure to obtain a Release), or any other breach by that User of its obligations under this Agreement.
12. Storing and using customer details
13. Scoopshot’s general rights and responsibilities
13.1 Scoopshot may make modifications or additions to these terms of delivery and use by notifying the User of the Service. Any modifications must be made in writing. Modifications made in an electronic format shall be considered to have been made in writing.
13.2 Scoopshot shall have the right to terminate the Service described in this Agreement without prior notice. In such a case, the service provider may remove all User information without separate warning.
13.3 Scoopshot may transfer or assign this Agreement to any third party without separate prior notice.
13.4 Scoopshot shall not be liable for the technical implementation of the Service such as, but not limited to, interruptions and breaks in telecommunication, any problems in data transfer caused by technical faults, maintenance and installation work.
13.5 Scoopshot shall not be liable for the destruction, disappearance or alteration of any Photo, or any consequent damages or costs.
14. Duty to cite the source
14.1 When a Photo is published for editorial use, Buyer shall credit Scoopshot as the source. The Seller shall have the right to define on the Service whether they want their name to be published and cited as the source together with Scoopshot.
14.2 Scoopshot shall deliver the source information to the Buyer.
Any complaints relating to the Photo must be submitted within five working days from the date of downloading the Photo from Scoopshot’s digital Photo database.
16. Force Majeure
16.1 A force majeure is an unusual and effective event that prevents the Parties from fulfilling their duties under the Agreement, that is beyond the control of the Parties and the hindering effect of which cannot be removed without unreasonable additional costs or loss of time. Such an event may be war; revolt; civil unrest; requisition or confiscation for public needs by an authority; import or export ban; natural disaster; suspension of public transport or energy distribution; labour dispute or fire or other unusual obstruction that is significant in terms of its effects and remains beyond the control of the Parties.
16.2 Each Party may cancel the Agreement entirely or in part if the duties under the Agreement cannot be fulfilled within a reasonable time frame due to a continuing force majeure.
17.1 The Parties (Scoopshot, Seller, and Buyer) agree not to disclose any information about the other party or in connection with this Agreement, without the relevant party’s permission. For the purpose of clarity, Scoopshot may disclose the identity of the Buyer of any Photo, and the Price associated with the license and the availability of a Release.
17.2 Seller’s name and phone number may also be non-confidential information to the Buyers, depending on the information/choices the Seller has given when registering within the Service.
18. Applicable law and dispute resolution
This agreement and the parties’ actions under this Agreement shall be governed by and construed under the laws of the state of New York, without reference to conflict of law principles. Any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement shall be resolved by binding arbitration before a single arbitrator by the American Arbitration Association (“AAA”), located in New York, New York, except as provided herein. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Service. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND SCOOPSHOT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
19. Order of priority