Terms of delivery and use, 5 November 2012
1.Parties and subject of the agreement
1.1.This agreement is applicable to the contractual relation between P2S Media Group Inc. (hereinafter 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 Internet-based Scoopshot Service. By accepting these terms of delivery and use, the Parties enter into the agreement
2.Definitions
| Scoopshot |
A photo trading service, (hereinafter Service), which supplies User Photos and Tasks between the Users registered with the Service. |
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| Scoopshot PRO |
A part of the Service especially designed for professionals (freelancer photographers and camera men), in which Scoopshot supplies Photo shooting tasks, i.e Pro Tasks, created by the Buyer to the Service only for professionals registered with the Service. |
| Photo |
A photo, which can be downloaded via the Service. It is a digital photograph or video file, which has been taken by the Photographer with a camera phone, camera or similar device designed for taking photos and/or video. |
| Photographer |
The first person having delivered the Photo to be supplied to the Buyers. The Photographer may also be a professional photographer offering PRO Task photoservices to be sold through the Scoopshot Service. |
| Seller |
A person/company who offers a Photo owned by him/her to be sold through the Scoopshot Service. The Seller may be the Photographer himself/herself or a person/company having bought the rights from the Service. |
| Buyer |
A person/company who, under this Agreement, may use the Service, order Photos and make Tasks to the Service. |
| User |
A person/company who uses the Service and who may be a Seller and/or a Buyer and/or Photographer. |
| Scoop Photo |
A topical Photo, which a Seller offers to be sold through the Service. The target of the Photo is selected by the Buyer. Since the idea of a Scoop Photo is to provide topical Photos for the media from events, persons etc. the sales time for Scoop Photo is only 48 hours from the delivery to the Service. |
| Task |
Photo shooting task, open for all (or selected) Photographers, created by the Buyer to the Service, which can be either; Scoopshot Task, Photo shooting task, in which the Photographers are asked to take a Photo of a certain event etc. according to the terms predefined by the Buyer, or PROMO Task, Photo shooting task / competition, in which the Photographers are asked to take a Photo of a certain event etc. according to the terms predefined by the Buyer. The Buyer will decide the winner/winners of the said competition and the winners will, receive a reward predefined by the Buyer, or PRO Task, Photo shooting task, open only for professionals registered with the Scoosphot PRO Service, in which they are asked to take a Photo of a certain event etc. according to the terms predefined by the Buyer. |
| Open Marketplace |
Place of sales for the Photos delivered to the Service and which the Buyers may use:
The Buyer may have a ling at the Open Marketplace to his/her own web pages. |
| Exclusive rights |
If the Photo is assigned to someone with “exclusive rights”, noone else is allowed to use, publish, sell or offer to sell the Photo or otherwise use the Photo for commercial purposes or in his/her own work without the permission of the above mentioned exclusive copyright holder. |
| All publishing rights |
If the Photo is assigned to someone with “all publishing rights”, the owner of the “all publishing rights” shall receive unlimited, Exclusive rights to forward, modify, publish and use the Photo in any media, anywhere in the world. The moral rights of the photographer or camera man under the copyright laws are inalienable and thus moral rights to the Photo shall not be transferred to the Buyer. |
| Release |
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 taking, publishing or other use of any Photo. |
| Price |
The Seller specifies the price for the Photo. In a Pro Task the Photographer specifies the price for the Photo shooting services and for the Photo separately. For the Photos delivered in accordance with the Scoopshot and PROMO Tasks the Buyer of the Task shall, within the Task, in advance inform he Seller of the price. The Buyer of the Photo shall pay the said price in accordance with the rules of the Task and/or these Terms of delivery and use. The prevailing Scoopshot commission (at the most 30%) is applied to all Photos delivered through the Service. For delivering the PROMO Tasks Scoopshot shall charge the Buyer a price agreed separately with the Buyer. |
3.Obligation to register and password responsibility
Users must register with the Service. 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.
4.Description of the Service
4.1.Scoopshot as supplier of the Photo
4.1.1.Scoopshot offers the Users a Service. The Photographer delivers a Photo to the Service electronically by phone for forwarding to the Buyer.
4.1.2.However, the Photos sent to a PRO Task the Photographer delivers electronically to the Scoopshot PRO Service for forwarding to the Buyers.
4.2.Scoopshot as supplier of the Tasks.
4.2.1.Scoopshot forwards through the Service Tasks created by the Buyers to the Photographers using location information of Sellers’ phones. Notices will be sent to those Photographers who have informed Scoopshot through the Service of their desire to be noticed of Tasks and agreed to let Scoopshot use their location information.
4.2.2.Notices of Scoopshot and PROMO Tasks will be sent to all Photographers, which, during the time of the Task, are situated in the area of the Task predefined by the Buyer or have, according to the information entered into the system some kind of connection to the area. During the Task notices of PRO Task will be sent only to the Photographers registered with the Scoophot PRO Service, which the Buyer has selected.
4.2.3.A Photographer, who takes a Photo in accordance with the Task, shall have the right to offer it through the Service for purchase by the Buyers.
4.2.4.A Photographer, who takes a Photo in accordance with PROMO Task, shall deliver it to the Scoopshot Service for the competition. Photos delivered in accordance with PROMO Task can all be published, during the Task, on web pages specially created for the PROMO Task, on web pages of the Buyer, on Facebook and possibly on other web pages related to the campaign without remuneration to the Photographer. However, Scoopshot and the Buyer shall always have the right to remove any Photo from the said webpages, if they consider it to be inappropriate. The Buyer will decide the winner/winners of the said competition and they will receive a reward predefined by the Buyer.
4.2.5.In a PRO Task the Buyer creates a Photo shooting task for the (professional) Photographers to the Service, to which the Photographer offers his/her Photo shooting Services for the price predefined by him/her. Before selecting the service provider for the Task the Buyer accepts the Price predefined by the Photographer for the photo shooting services and for the Photo.
4.2.6.The purchase of a delivered Photo is always at the sole discretion of the Buyer.
5.Scoopshot’s rights to the Photo
5.1.The Photographer shall provide the Service Exclusive rights to the Photo for a minimum of 48 hours after the delivery of the Photo.
5.2.For all Photos delivered to any Tasks the Photographer shall provide the Service Exclusive rights to the Photo for the duration of the Task and 48 hours after the end of the Task.
5.3.Should no Buyer purchase the rights specified in Section 5 of this Agreement within the above mentioned Exclusive right period, all copyrights shall be returned to the Photographer unless the Photographer has specifically assigned permanently the right to forward the Photo’s copyrights to the Scoopshot, in which case the rights specified in this Agreement shall remain with the Scoopshot.
5.4.However, at any time during the above mentioned Exclusive period and also after the Exclusive rights have lapsed, Scoopshot shall have the right (with the Buyer’s decision) to supply to the Buyers all Scoopshot Task Photos delivered to the Scoopshot Service. A contemporaneous right to use and sell publishing rights to the Photo shall remain with the Photographer. The Photographer shall have the right to, independently, sell, at the most, a three-day publishing right to the Photo according to the Section 6.2 of this agreement, i.e. not All publishing rights.
5.5.Scoopshot’s right to forward the copyrights to the Photo to the Buyer shall take effect immediately after the Photographer has delivered the Photo to the Scoopshot Service.
5.6.Should the Buyer purchase through the Scoopshot Service the three-day publishing rights to publish a Photo as mentioned in Section 6.2 of this Agreement, the right to forward the Photo’s copyrights shall be permanently and Exclusively assigned to Scoopshot. For the sake of clarity, this shall not apply to photos delivered to Tasks.
5.7.Scoopshot may use the Photo without restrictions in marketing the Service in all media and countries during the period when the right to forward the copyrights is assigned to Scoopshot under this Agreement and also after the contractual rights have been forwarded to the Buyer.
5.8.Under this Agreement, Scoopshot may copy the Photos and make them available on the Service in ‘viewing mode’, whereby Users’ access to the Photos is limited to viewing only.
5.9.Scoopshot may also without restrictions use all Photos delivered to a PROMO Task in marketing the Service in all media and countries, regardless of whether the Photo wins the PROMO-competition or not.
6.Buyer’s rights concerning the Photo
6.1.General terms for all Photos
6.1.1.Scoopshot shall supply the Buyer the Photo for the purpose specifically mentioned by the Buyer, at the Price approved by the Buyer and with the licensing terms chosen by the Buyer. The licensing options are listed in Section 6.
6.1.2.The Buyer may purchase rights to re-use the Photo or rights to additional use of the Photo through the Service (this does not include Photos delivered according to Tasks). The same Price that was valid when the Buyer first purchased the Photo through the Service is applicable to the re-use and additional use.
6.1.3.Modification of the Photo for editorial purposes shall be permitted. Any other modifications to the Photo shall require the prior permission of the Seller ( unless the Buyer has bought All publishing rights). Furthermore, when the usage permitted under this Section 6 requires forwarding the Photo in order to enable the permitted use of the Photo in different distribution channels, the Photo may be forwarded.
6.1.4.The right to publish shall not be geographically restricted i.e. the Photo may be published in any country but, as specified above, only in those publications which are covered by purchased publishing rights.
6.1.5.For the sake of clarity it should be stated that Photos shall 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. However, re-use of the Photo (e.g. in a different article after the termination of the required licensing rights) requires re-purchasing the publishing rights.
6.1.6.Any Photographer of any Photo, (including Tasks) shall have the right to always use the Photo in personal portfolios, exhibitions and in retrospective use regardless of the rights assigned to the Buyer.
6.2.Scoop Photo and a Photo sold in the Open Marketplace
6.2.1.Scoopshot shall supply the Scoop Photo and Photos sold in the Open marketplace at the Price approved by the Buyer, with “three-day publishing rights” to the Photo to be used within 7 days of the purchase for the purpose stated by the Buyer in the Service.
6.2.2.‘Three-day publishing rights” refers to the right of the Buyer to publish the Photo in any distribution channel owned by the Buyer under one brand. These publishing rights thus refer to the Buyer’s right to use the Photo without restriction for three days in media published under the Buyer’s one brand regardless of the distribution channel. For example, under one brand (‘The X Times’): in a printed newspaper and/or printed advertising and/or Internet online service and/or mobile terminal device and/or television advertising under the same brand and in the same context.
6.2.3.This “three-day right to publish” shall not mean a Buyers Exclusive right to publish the Photo. Other Buyers may also buy the same “three-day publishing right” from Scoopshot. Other copyrights (except the three-day publishing right) shall not be transferred to the Buyer of ‘three-day publishing rights’. The Buyer shall have the right to buy All publishing rights to the Photo at the price separately defined in the Price (for Photos sold in the Open Marketplace the Seller shall have the right to limit this right).
6.3.Scoopshot Task
The Scoopshot Tasks Photos are always delivered with All publishing rights to the Buyer. The Buyer shall have the right to place all the Photos delivered to the Scoopshot Service to be sold in the Open Marketplace, in which case the Photos in the Open Marketplace shall be sold to other Buyers with the “three-day publishing right” according to the Section 6.2 above. In case the Buyer of the Task has not bought All publishing rights to the Photo according to this agreement the Photographer having delivered the Photo to the Task shall have the right to obtain a remuneration according to the Task, at the minimum, also for sales in the Open marketplace.
6.4.PROMO Task
The PROMO Task winner Photos are always delivered with All Publishing rights. For the sake of clarity it should be stated that the reward from PROMO Task for the winner/winners shall be the total remuneration for the Photo.
In the PROMO Task the Buyer shall also have the opportunity to purchase a geographically non-restricted, Exclusive, separate right for advertising purposes to all non-winning Photos delivered to Scoopshot according to the PROMO Task. However the Buyer has to specifically mention beforehand at the PROMO Task at issue the possible advertising use for the non-winning Photos as well as the remuneration to be paid for the Sellers. This right is sold without any time limitations for publications but can be only bought through Scoopshot service during the time of the Task and 7 days thereafter.
6.5.PRO Task Photo:
The PROMO Task winner Photos are always delivered with All Publishing rights. For the sake of clarity it should be stated that the reward from PROMO Task for the winner/winners shall be the total remuneration for the Photo.
- Basic
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The Buyer may publish the Photo once in any distribution channel owned by the Buyer against a single payment. This publishing right thus refer to the Buyer’s right to use the Photo once in all medias published under the Buyer’s one brand regardless of the distribution channel. For example, under one brand (‘The X Times’): in a printed newspaper and/or printed advertising and/or Internet online service and/or mobile terminal device and/or television, once in all of them and under the same brand and in the same context. This right is valid for three days from the purchase date.
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However, the Photo may only be used in news and any advertising use is strictly prohibited.
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- Basic +
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The same as PRO task Basic license above. In addition unlimited archival re-use for the Buyer under the same brand.
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However, the Photo may only be used in news and any advertising use is strictly prohibited.
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- Group
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The same as PRO task Basic +license above. In addition the Buyer may publish Photos in any of the brands which the Buyer has nominated to be a group company of the Buyer while setting up the Task at issue.
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However, the Photo may only be used in news and any advertising use is strictly prohibited.
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- Unlimited
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All above mentioned licensing rights. In addition the Buyer has the right to modify the Photo, resell the Photo and use the Photo in any other way as the Buyer wishes, i.e, the Buyer shall receive All publishing rights to the Photo.
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7.Transferring copyrights to the Buyer and payment
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. Scoopshot shall transfer the Seller’s share of the payment specified in this Agreement to the Seller within 14 days from the date Seller requesting Scoopshot through the Service for such payment. In case the Seller is Finnish the Seller shall provide Scoopshot with a tax deduction card (a professional Photographer may also provide Scoopshot with a VAT number) at the time of said request for withholding the corresponding tax. In such case Scoopshot shall transfer the payment within 14 days after having received the tax deduction card. A Finish Seller shall have the right to inform Scoopshot that he/she shall not provide Scoopshot with such document. In this latter case Scooopshot shall withold 60 % of the payment as tax.
7.2.The Price specified shall be transferred on the assumption that the payment made by the Buyer is indisputable i.e. the Buyer agrees that the Photo has been delivered in accordance with the terms of the Service.
7.3.The right to use the Photo under this Agreement shall be transferred to the Buyer when the price of the Photo is paid in full to Scoopshot’s account 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 purchasing a licensing right (described in Section 6) for the Photo, a charge of 500% of the Price specified shall be added to the Price to compensate for unauthorised publishing.
8.Taxation
8.1.The remuneration paid to the Seller for the Photo is taxable income in most countries. With regard to taxation, the reward from PROMO Task shall be considered in most countries as taxable income or raffle prize, depending on the PROMO Task at issue.
8.2.The Seller shall be obliged to comply with the (tax) legislation of his/her domicile. If the Seller is not liable to tax in Finland, 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 are exclusive of tax. VAT may be added to the selling price depending on the Buyer’s domicile and/or 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 his/her domicile.
9.Liability of the Photographer
9.1.The Photographer shall be liable for ensuring that the Photo has in no way been edited or altered after it was taken and that, to the best of the Seller’s knowledge, the subject/situation depicted in the Photo is authentic. In the PRO Tasks professional photographers and camera men are, however, allowed to do basic photo editing to the Photo in a way that does not change the subject/situation of the Photo. However, if requested by the Buyer, the Seller must be capable of presenting the original raw file of the Photo to the Buyer.
9.2.The Photographer shall be liable 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 would conflict with this Agreement or would prevent Scoopshot and/or the Buyer from exercising their rights under this Agreement.
9.3.Scoopshot insists that the Photographer abides by law and good practice and exercise caution when taking the Photo. Furthermore, the Photographer alone shall be liable for any damage caused to the Photographer himself/herself or to a third party by the taking of the Photo.
9.4.The Photographer 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 Photographer shall especially ensure (without limitation) that when taking the Photo the provisions in all applicable legislation relating to privacy protection and defamation in the Photographer’s country (in Finland the Criminal Code, Chapter 24) and in the country where the Photo has been taken as well as all other applicable legislation is adhered to. The Photographer acknowledges and agrees that Scoopshot is in no way inciting or encouraging the Photographer 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.
10.Liability of the Seller
10.1.The Seller is liable for ensuring that he/she owns all copyrights to the Photo as specified in the Copyright Act and/or in other copyright related legislation in the Seller´s country and that the Seller has the right to transfer the rights specified in this Agreement to Scoopshot and the Buyer.
10.2.The Seller shall be liable for any direct damage caused to other Parties by contractual 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 of gross negligently.
For the sake of clarity it should also be stated that the Buyer has the journalistic responsibility. The Buyer shall be responsible, according t the Section 11.3, that the use of the Photo complies with all applicable legislation and that the publishing of the Photo complies with general journalistic practice and good practice.
11.Liability of the Buyer
11.1.The Buyer shall be liable for any damage caused to other Parties by any use of the Photo that conflicts with legislation or this Agreement.
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 by taking or using the Photo. The User shall be liable for damage relating to the Photo as specified in Sections 10 and 11 of this Agreement.
11.3.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 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 the publishing of the Photo complies with general journalistic practice and good practice. The Buyer acknowledges and agrees that publishing the Photo may, in some instances, require obtaining a Release, and that the Photographer/Seller has not necessarily acquired such Release. The Buyer is responsible for obtaining all Releases and it agrees that its publication of a Photo is conditional on obtaining all Releases. Should the Buyer have reason to believe that permission or consent for publishing is required under any applicable law a, the Buyer shall not publish the Photo.
11.4.The Buyer may not deactivate the protection (watermark) created by Scoopshot for the Photo nor remove information regarding the rights holder without specific written permission from Scoopshot.
12.Liability of Scoopshot
12.1.Scoopshot shall only be liable for direct damage it has caused intentionally or by gross negligence. Scoopshot’s liability shall be limited to the compensation for the publishing rights of the Photo paid to Scoopshot in accordance with the Price. Scoopshot shall not be liable for indirect damage or damage caused to a third party.
12.2.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 by taking or using the Photo. The User shall be liable for damage relating to the Photo as specified in Sections 9, 10 and 11 of this Agreement.
12.3.No representation, warranty or condition, express or implied, statutory or otherwise is given by Scoopshot:
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in relation to the use of any names, trade marks or other intellectual property, or other third party rights in a Photo, and
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as to the existence of any Release,
and any all such representations, warranties and conditions are excluded save to the extent prohibited by law.
12.4.Each User agrees to indemnify Scoopshot 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.
13.Storing and using customer details
13.1.Scoopshot shall register the information given by the User through the Service on the Scoopshot customer database.
13.2.This information shall be stored safely and can only be used for Scoopshot’s own legal purposes including advertising.
13.3.Scoopshot shall not disclose the information to any third party without the permission of the User. When registering with the Service the Photographers are asked whether or not they want their name and phone number to be shown to the Buyers for possible negotiations concerning the Photo and whether they want to be cited as the source of the Photo.
13.4.However, Scoopshot may disclose information relating to the other Party to public authorities or to the other Party if this is justified by an on-going investigation by the authorities or by the legal protection of the Parties. The User must have access to the information concerning him/her stored in the database. A request to view personal information must be submitted to Scoopshot in writing, with signature, or in person to the person responsible for the register, as listed on www.scoopshot.com.
14.Prohibition of forwarding and copying
The Buyer may not forward his/her right under this Agreement or the actual Photo to any third party unless Scoopshot and the Buyer agree otherwise. Furthermore, the User may not copy, distribute, send or supply the material available on the Service unless the parties agree otherwise.
15.Scoopshot’s general rights and responsibilities concerning technical implementation
15.1.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.
15.2.Scoopshot shall have the right to terminate the Service described in this Agreement without prior notice. In these cases, the service provider may remove all User information without separate warning.
15.3.Scoopshot may transfer this Agreement to a third party without separate notice.
15.4.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.
15.5.Scoopshot shall not be liable for the destruction, disappearance or alteration of the User´s Photo, or any consequent damages or costs.
16.Duty to cite the source
16.1.When a Photo is published, Scoopshot must always be cited as the source. The Photographer shall have the right to define on the Service whether he/she wants his/her name to be published and cited as the source together with Scoopshot. In the Photos delivered according to a PRO Task Scoopshot and the Photographer must always be cited as the source.
16.2.Scoopshot shall deliver the source information to the Buyer. Should the source not be cited, an additional fee of 300% of the Price specified shall be added to the Price of publication.
17.Complaints
Any complaints relating to the Photo must be submitted within 5 working days after downloading the Photo from the Scoopshot digital Photo database.
18.Force Majeure
18.1.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.
18.2.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.
19.Confidentiality
19.1.The Parties (Scoopshot, Photographer, Seller, Buyer) agree not to disclose any information about the other party with regard to this Agreement without the other party’s permission. For the purpose of clarity, it is established that the price/PROMO reward and the Buyer is non-confidential information.
19.2.Photographer’s name and phone number may also be non-confidential information for the Buyers depending on the information/choices the Photographer has given when registering within the Service.
20.Applicable law and dispute resolution
20.1.This Agreement shall be governed by the laws of Finland. The connecting factor rules of Finnish law or the Convention on Contracts for the International Sale of Goods (CISG) shall not, however, be applied to the contract.
20.2.Any and all disputes arising out or in connection with this Agreement, which cannot be settled by mutual negotiations, shall be settled by the District Court of Helsinki, as first instance.
21.Order of priority
In case there is a contradiction between different language versions of these Scoopshot terms of use and delivery, the English version will take precedence. However, if the User´s domicile is in Finland the Finnish version will take precedence.