(Version 1.0, May 2012)
If the User is a private individual, the User Agreement is only valid if entered into by a User who is at least 18 years old on the day of entering into the User Agreement. If the User is a legal entity, the User Agreement is valid only if entered into by an authorized representative of such User.
The “Foap App” is a smartphone application for the handling and uploading of photos to Foap Market. “Foap Market” is a marketplace in which a mobile phone user can publish photos taken with his/her mobile phone and offer such photos for sale to other Users who wish to use the photo. A user who uses the Foap Services to publish photos for sale on Foap Market is referred to as a “Seller”. A User using the Foap Services to purchase photos is referred to as a “Buyer”.
Please note that upon the purchase of photos on Foap Market, the Seller grants to the Buyer a non-exclusive right of use to such photos. Thus, a Buyer will not acquire any exclusive rights to any photo purchased through Foap Market. In case a Buyer is interested in acquiring such an exclusive right to a specific photo, the Buyer may contact Foap directly, in order for Foap to establish a direct contact with the relevant Seller for further discussions outside the scope of Foap Market.
This User Agreement is divided into four separate sections, according to the following:
- Foap’s right to review, categorize and remove Content
- Trade terms between Seller and Buyer for the sale and purchase of Content Licenses
- General terms applying to the User Agreement
A. Foap AB's right to review, categorize and remove content
A key component in Foap Market is that the photos and thereto related information published for sale on Foap Market (the “Content”) are of good quality and possible to sell to Buyers through the market place. Therefore, Foap reserves the right to review all Content uploaded to Foap Market and to remove – at any time – any Content that Foap deems, in its own discretion, not to be in accordance with the terms of this User Agreement. Foap further reserves the right to remove any Content that Foap deems, in its own discretion, (i) does not fulfill the quality requirements and standards set from time to time by Foap for Foap Market, (ii) does not fulfill a need or demand on Foap Market (i.e. yet another photo on a topic/motif where there already are plenty) or (iii) Content that is not subject to any transactions, or is slow-selling, on Foap Market.
On Foap Market, Content is categorized as either editorial or commercial. For comments on how such categorization is made, please view the guidelines available from time to time on www.foap.com. Each Seller may suggest to Foap whether a photo should be categorized as editorial or commercial, but Foap reserves the exclusive right to categorize Content at its own discretion. Foap shall further be entitled to create compilations or portfolios of Content (both by the same Seller or combining Content from different Sellers) and to classify or tag Content at its own discretion.
Should a Seller not agree with Foap’s decision not to include Content or to remove Content from Foap Market, the Seller may file an appeal of the decision to Foap’s customer support. However, each User is reminded that Foap Market is run by Foap with the intention for Sellers and Buyers to easily find and trade quality photos and that Foap has final say on what to offer to Buyers on that market place. Thus, the User does not have any unrestricted right to have his/her Content published on Foap Market. A Seller can always remove a photo from Foap Market if he/she does not agree with Foap’s decisions regarding the categorization or use of the photo on Foap Market.
B.1. SCOPE OF THE SERVICES
The Foap Services consist of the services, the systems, the information and the products (including software) which appear, from time to time, in the description of the Foap Services on Foap’s web site www.foap.com. Foap undertakes, in accordance with the User Agreement and as described, from time to time, on Foap’s web site, to give the User access to Foap Market on the servers provided by Foap, through use of the Foap App or through connection to Foap Market via a web browser. The User is aware and accepts that the User’s usage of the Foap Services requires the User to have access to a mobile or fixed Internet connection. The User must itself provide, pay for and sustain such Internet connection and all other equipment that is required to access and use the Foap Services.
Foap undertakes to take reasonable steps to ensure that Foap Market is accessible via the Internet 24 hours a day, seven days a week. However, Foap reserves the right to, at its own discretion and when it deems necessary due to technical-, operational-, maintenance- or security reasons, take measures which may affect the accessibility of Foap Market. The User is aware that Foap Market may be closed down with immediate effect if Foap deems necessary for security or other reasons. Foap reserves the right to change, add or remove functions in the Foap Services and to unilaterally change, make additions, and in other ways amend the terms of this User Agreement at any time. Foap shall notify the User, via the Foap App or Foap Market, at Foap’s web site or by email to an email address submitted by the User, of such amendments of the terms of the User Agreement and/or such material changes of the Foap Services that Foap makes. In case the User does not accept such material change of the Foap Services or of the terms of the User Agreement, the User may, within thirty (30) days from receipt of Foap’s notification of the changes, terminate the User Agreement with immediate effect. A User that has not terminated the User Agreement at the latest thirty (30) days from the date when Foap notified the User of the changes, shall be deemed to have accepted such changes.
Foap is liable for ensuring that Content that is uploaded from the Foap App to Foap Market by a Seller is stored and presented in the same format as uploaded. However, Foap is not liable for any disruptions or misrepresentations of the Content which occur during the transfer via the Internet.
Foap Market does not protect against viruses or other harmful code and the User is aware that all opening of files available on Foap Market is made at the User’s own risk. Foap does not give any warranty regarding the availability of Foap Market and does not warrant that Foap Market is free from defects.
B.2. REGISTRATION AND PROCESSING OF USER INFORMATION
Each User is entitled to register only one account for Foap Market. Upon registration, the User shall submit the personal and address details requested in the registration form including inter alia name, personal/corporate identification number, postal address and e-mail address (the “Registration Data”) and keep Foap informed of any changes in such Registration Data during the term of the User Agreement. A User who is a legal entity shall also submit information about the contact person(s) who shall have access to Foap Market on behalf of the legal entity. If the User submits inaccurate, incomplete or outdated Registration Data, Foap is entitled to terminate the User Agreement with the User with immediate effect and to concurrently cancel or terminate the User’s access to Foap Market.
In connection with registration, each User is further required to submit information on payment details on the account to which payments are to be received (for Sellers) or payments are to be made (for Buyers) (the “Payment Data”). The payment solutions supported by Foap Market from time to time are listed Foap Market and the User must register with either of these services to be able to use Foap Market.
The User shall ensure that the user account and the password which the User registers for its use of Foap Market are stored in a satisfactory manner and protected from being used by any third party. The User is responsible for any and all unauthorized use of the User’s user account and password until the User has requested and Foap has blocked the access to Foap Market for a specific User identity.
Foap collects and processes the personal data about the User or the User’s contact person(s) that is submitted with the registration form, including Registration Data and Payment Data, and which is uploaded using the Foap App (including Content containing personal data, (collectively the “Personal Data”) in order to supply and administrate Foap Market and to fulfill its obligations under the User Agreement. To the extent necessary for Foap’s supply of its services, Foap may transfer the Personal Data to service providers acting on behalf of Foap and to Foap’s partners. Foap and/or Foap’s partners are entitled to process the Personal Data for marketing, campaigns, offers and new products or services that are offered within the scope of the Foap Services by Foap or Foap’s partners. The User or the User’s contact persons are entitled to access the Personal Data that Foap has registered about them, and may at any time demand Foap to correct or erase erroneous or incomplete Personal Data. In addition hereto, the User may itself correct its Personal Data, by logging into its user account for Foap Market. By accepting this User Agreement, the User consents to Foap’s processing of Personal Data in accordance with this Section. Foap is not entitled to submit User information to anyone other than the partners who, together with Foap, provide services within the scope of the Foap Services.
B.3. REGULATIONS REGARDING CONTENT UPLOADED TO FOAP MARKET
The User is solely and exclusively responsible for all Content that the User submits, processes or handles by use of the Foap Services and for all data that the User stores on Foap’s servers. Foap does not and cannot review all Content uploaded to Foap Market and is not responsible for the Content. Any screening of Content performed by Foap should be considered only as a courtesy and does not limit the User’s responsibility for the Content.
The User may use the Foap Services only in accordance with the User Agreement and Foap’s from time to time applicable instructions. The User is not entitled to use the Foap Services in any way that may overload, disturb, harm, inactivate or impair the Foap Services, or use the Foap Services in any way that may lead to transfer, distribution or uploading of software or material containing harmful code, such as virus, time bombs, cancelbots, worms, Trojan horses, espionage software or other potentially harmful software, material or information.
The User undertakes not to use the Foap Services for the purposes of uploading, posting, emailing or in any other way processing or forwarding Content in breach of applicable law (including but not limited to information that may be deemed to constitute incitement to racial hatred, child pornography, slander, insult, instigation of rebellion, unlawful description of violence, and/or violation of copyright or any intellectual property law or violations of the personal data act) or that may in any other way be conceived as threatening, insulting, racist, offensive, vulgar and/or indecent or which involves infringement of a private individual’s personal sphere or the infringement of a third party trademark or copyright or other intellectual property right. The User is also obligated not to use Foap’s trademarks or distinctive marks in any way other than has been explicitly consented to by Foap.
By agreeing to this User Agreement the User consents to Foap’s processing and storing of the Personal Data and the Content, and to disclosing Personal Data or Content if Foap is obliged to do so by law, or if Foap at its own discretion considers it necessary to (a) comply with a legal obligation; (b) uphold the User Agreement; (c) respond to statements that Content and/or Personal Data constitute an infringement of a third party right or in any other way is in contravention with law; or (d) protect Foap’s, its users or the publics’ interests, rights, property or personal safety.
If a User finds that Content available on Foap Market is in breach of the terms of this User Agreement, such User may file a complaint with Foap’s customer support. In the event of such complaint, Foap reserves the right to remove the Content in question either temporarily or permanently.
B.4. GRANT OF LICENSE TO THE CONTENT
Each Seller that uploads Content to Foap Market hereby agrees to grant the following licenses:
To Foap. a worldwide, non-exclusive, royalty-free, transferable license (with right to sub-license) to use, reproduce, distribute and display Content within the scope of the various functionalities of Foap Market from time to time and within the business of Foap, including without limitation promoting Foap Market or redistributing Foap Market in any media formats and through any media channels.
To each user. a worldwide, non-exclusive, royalty-free license to access the Seller’s Content through Foap Market for review only.
Foap may from time to time grant to the operators of public search engines permission to use search engines or search spiders to copy Content for the sole purpose of creating publicly available searchable indices of the Content. Each Seller specifically allows for Foap to grant access to the Content for such search engines or spiders.
Any commercial use of any Content by another User than the Seller requires such User to purchase a Content License to the Content as per the definition below.
The licenses to the Content granted by a Seller according to the above shall automatically terminate when the Seller or Foap, as the case may be, removes or deletes the Content from Foap Market.
B.5. PRICING OF CONTENT
By uploading Content to Foap Market, the Seller agrees to have such Content published for sale on Foap Market at such terms and prices that Foap apply from time to time for such sale (as further detailed in Section C below).
Foap reserves the right at its own discretion to set the Content Fee (as defined below) for all Content Licenses to the Content published on Foap Market. Foap further reserves the right to adjust any such Content Fee upwards or downwards at its own discretion at any time, to run temporary promotional campaigns covering all or some of the Content on Foap Market and to create bundles, compilations and portfolios of Content and to set the prices for such campaigns, bundles, etc, at its own discretion.
C. TRADE TERMS BETWEEN SELLER AND BUYER FOR THE SALE AND PURCHASE OF CONTENT LICENSES
C.1. CONTENT FEE, LICENSE FEE AND TRANSACTION FEE
For any purchase of Content Licenses (as defined below), the Buyer agrees to pay the defined price stipulated on Foap Market for the relevant Content (the “Content Fee”). The Content Fee consists of:
- a one-time license fee paid by the Buyer to the Seller allowing for the Buyer to use the Content purchased in accordance with the terms of this User Agreement (the “License Fee”) and
- a transaction fee paid by the Buyer to Foap for its use of the Foap Services to purchase the Content License (the “Transaction Fee”).
The License Fee and the Transaction Fee (including applicable value added tax thereon) amounts to fifty (50) percent each of the Content Fee.
C.2. LICENSE TERMS FOR CONTENT LICENSES, PROHIBITED USES
Subject to completion of the purchase process on Foap Market and the Buyer’s payment of the Content Fee, and in accordance with the terms of this User Agreement, the Seller grants to the Buyer a non-exclusive, perpetual, world-wide and fully-paid right of use to the Content for any purpose, whether commercial or non-commercial, including the right to modify, reproduce, publish, display and sub-license the Content, and create derivative works thereof, in any manner (the “Content License”). However, the Buyer may not use the Content for any uses as are prohibited according to the below (“Prohibited Uses”).
Prohibited Uses are:
- any use that constitutes incitement to racial hatred, child pornography, slander, insult, instigation of rebellion, unlawful description of violence,
- any use that may in any other way be conceived as threatening, insulting, racist, offensive, vulgar and/or indecent or which involves infringement of a private individual’s personal sphere,
- any use that constitutes infringement of a third party trademark or copyright or other intellectual property right or constitutes violation of relevant personal data protection regulations, or
- for Content marked as “Editorial” or marketed under the Editorial section of Foap Market, any commercial, promotional, advertising or merchandising use.
Nothing in this User Agreement shall constitute or be construed as a transfer of ownership to the Buyer of any of the Seller’s intellectual property rights or other proprietary rights in and to the Content.
C.3. CONSENTS FROM PARTICIPATING INDIVIDUALS/MODELS
The Seller confirms, through the uploading of Content to Foap Market, that the Seller has received all required consents from any and all private individuals participating in Content (“Model Releases”). Upon request from Foap, the Seller undertakes to provide such written or other evidence as Foap may reasonably require to confirm such Model Releases from participating individuals/models in the Content.
C.4. BUYER’S OBLIGATION TO ARRANGE ALL OTHER CONSENTS
Apart from the Model Releases detailed above, the Buyer is responsible for arranging any and all consents required for the Buyer’s intended use of the Content, including but not limited to any consents required from trademark owners, building or land owners or owners of other intellectual property included in the Content. The Seller shall not be responsible for obtaining any such consent, unless otherwise agreed in writing directly between the Seller and the Buyer.
C.5. NO RIGHT FOR SELLER TO BE IDENTIFIED AS PHOTOGRAPHER
The Seller is aware and agrees that by granting a Content License under this User Agreement, the Seller waives all its rights to be identified or mentioned as photographer or copyright holder of the Content. Thus, the Buyer shall be free to use the Content in accordance with the Content License without mentioning the Seller. However, the Buyer shall not be entitled to state or otherwise indicate that the Buyer is the copyright holder of the Content, but may merely state that the Buyer uses the Content under license.
C.6. REPRESENTATIONS AND WARRANTIES
The Seller represents and warrants to the Buyer and to Foap that the Seller is the original photographer of the Content and that it holds all rights in and to the Content. The Seller further represents and warrants to the Buyer and to Foap that the Content does not infringe upon any copyright, moral right or other intellectual property right.
Where the Content is listed as “Editorial” or marked under the Editorial section of Foap Market, the Seller further represents and warrants to the Buyer and to Foap that the Content has not been manipulated, modified or processed in anyway that might affect the integrity of the Content.
OTHER THAN AS EXPRESSLY PROVIDED IN THIS USER AGREEMENT, THE CONTENT IS PROVIDED “AS IS” WITHOUT REPESENTATION, 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. THE SELLER DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET ANY REQUIREMENTS OF THE BUYER. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT TO ACHIEVE A SPECIFIC RESULT IS WITH THE BUYER.
C.7. PAYMENT TERMS
Payment of the Content Fee is made by the Buyer through the purchase process on Foap Market. In relation thereto, Foap receives the License Fee on behalf of the Seller and the Transaction Fee for its own account. All payments are final and binding and will not be refunded to a Buyer under any circumstances.
Upon Foap’s receipt of the Content Fee, the Content will be released to the Buyer for use in accordance with the Content License.
With respect to Foap Market pre-pay credits, which the Buyer can purchase from Foap for future use on Foap Market, it is expressly noted that such credits are non-refundable and that the Buyer cannot request repayment of such credits in cash. Unused pre-pay credits on Foap Market will be automatically cancelled without further notice if the Buyer has not used credits to purchase any Content Licenses on Foap Market during a consecutive period of twelve (12) months.
C.8. RELEASE OF THE LICENSE FEE TO THE SELLER
License Fees will be accumulated on each Seller’s user account on Foap Market. The Seller may request Foap to release the License Fees received by Foap on behalf of the Seller through the “Cash Out” function connected to the Seller’s user account. If such a release request is received by Foap not later than the 15 th in a calendar month, the balance on the Seller’s user account as of the date of the release request will be paid out at the end of that calendar month as per the Payment Data registered by the Seller. If the release request is received after the 15 th, the payment will be made at the end of the following calendar month. Said payment shall be considered as full payment for the Content Licenses sold by the Seller.
If the Seller has not requested release of accumulated License Fees within twenty-four (24) months from the date of sale of the Content License(s), or if the Seller within the same period has failed to provide valid Payment Data enabling Foap to release accumulated License Fees, such License Fees will be forfeited by the Seller and will accrue to Foap.
C.9. CLAIMS AND DISPUTES BETWEEN SELLER AND BUYER
In the event of a breach by the Seller or Buyer of the terms of this User Agreement or in the event of any other claim directed by the Seller towards the Buyer or vice versa, such claims or disputes will need to be handled directly between the Seller and the Buyer.
In the event of any such claim or dispute, Foap may release relevant Registration Data to the relevant party against which the Seller/Buyer has a claim, but Foap shall not be under any obligation to do so. Each of the Seller and Buyer agrees to the release of such Registration Data if Foap so decides. Apart from any such release of Registration Data, Foap shall not be part of any such dispute or have any responsibility in relation thereto and each of the Seller and the Buyer expressly disclaims any responsibility for Foap in relation thereto.
C.10. LIMITATION OF LIABILITY FOR FOAP FOR TRANSACTIONS
The Seller and the Buyer recognize that Foap is not an auctioneer, but merely the provider of Foap Market as a transaction platform enabling Sellers and Buyers to sell/buy Content Licenses. Thus, Foap is not involved in the transaction between Seller and Buyer and shall under no circumstances be held liable by any Seller or Buyer for any loss or damage arising out of in connection with any transaction made using Foap Market.
Foap’s liability is further limited as set out in Section D below.
D. GENERAL TERMS APPLYING TO THE USER AGREEMENT
D.1. SOFTWARE LICENSE
Foap grants each User a non-exclusive, non-transferable, world-wide and revocable license to install and use the Foap App and any software included in Foap Market, including connecting media and specifications, and instructions for handling of such software (collectively the “Software”). Foap reserves the right to change or replace the software during the term of this User Agreement. All intellectual property rights to the Software are held by Foap or its licensors. The User has no right whatsoever to the Software, except for what is explicitly stated in this User Agreement. The Software may only be copied by the User to the extent that is explicitly consented to in writing by Foap. The User may not under any circumstances entirely or partly decompose, process, change, reverse engineer, copy, make additions or create derived items or productions from the Software in addition to what is explicitly stated in this User Agreement. The User also undertakes to ensure that no third party is admitted to examine the Software without Foap’s written consent. At the termination of the User Agreement the Software shall be uninstalled by the User. Foap does not in any way warrant that the Software is adequate to the User’s needs or that the Software can be used without disruptions or defects.
D.2. USER SUPPORT
User support for the Foap App is provided through guidelines, FAQ and other support documents available from time to time on Foap’s web site, www.foap.com. Foap does not warrant the availability of any User support for any specific question or support matter.
D.3. CLAIMS RELATED TO THE USE OF THE FOAP SERVICES
If claims are made against Foap or an action is brought against Foap due to the User’s use of the Foap Services, the User undertakes to indemnify Foap for any harm, loss or damage that is inflicted upon Foap because of such claim (including but not limited to costs connected with settlement or judgment). The undertaking is valid only if the User, within a reasonable time from the claims have been made, is informed in writing by Foap of the claims or of the fact that actions have been brought against Foap.
D.4. LIMITATION OF LIABILITY
Foap shall not be liable for any direct, indirect or consequential damage, on persons or property, economic loss or loss of data which are caused to the User or a third party due to the Foap Services or the User’s use of the Foap Services. Foap shall not be liable for any unauthorized access to data or deficient data secrecy in connection with the transfer of information via the Internet when using Foap Market, or for any misuse of Content published on Foap Market. Foap’s liability shall be limited to the above stated except in case of gross negligence or intent. Foap’s liability under this User Agreement shall under all circumstances always be limited to a sum corresponding to the Transaction Fee in relation to the Content to which a claim relates. However, such liability shall never exceed SEK 1.000. Claims in excess of this sum cannot be made against Foap by a User. This limitation shall apply even if other warranties or remedies under this User Agreement fail to fulfill their purposes.
D.5. TERM AND TERMINATION
This User Agreement enters into force on the day of the User’s registration on Foap Market or downloading and activation of the Foap App and shall remain in force until terminated. Termination may be made by either party for cause or for convenience at any time. Termination by a User is made through deactivation of the User’s account on Foap Market and is effective immediately. Termination by Foap is made through notification to the User through the User’s account on Foap Market or through the Foap App or by e-mail to the e-mail address provided by the User as Registration Data, with at least thirty (30) days prior notice.
Upon termination of the User Agreement, the User’s access to Foap Market will automatically cease. Foap shall be under no obligation to store or preserve any Content of a User available on Foap Market upon such termination and shall have the right to immediately upon termination remove and discard such Content. Upon termination of the User Agreement, the User shall further cease use of the Foap App and uninstall it from any and all of the User’s devices where it is installed.
Foap retains the right to immediately terminate the User Agreement and/or close down, wholly or partly, the User’s access to Foap Market for any User that uses the Foap Services in breach of this User Agreement or in breach of Foap’s instructions, or for Users that Foap otherwise considers risk seriously disrupting the usage of Foap’s systems or that abuses Foap Market. In addition, Foap shall be entitled to terminate the User Agreement with immediate effect if the User is declared bankrupt, suspends its payments, enters into liquidation or is otherwise deemed insolvent. Upon Foap’s termination of the User Agreement for User’s breach of contract, Foap retains the right to request compensation from User for all damage caused by the User’s breach of contract.
This User Agreement comprises the entire agreement between the parties regarding the User’s use of the Foap Services. Except for Foap’s right to change, make additions and in other ways amend the terms of this User Agreement according to Section B.1 (Scope of Service) above, all potential additions or amendments to this User Agreement shall be made in writing and be duly signed by both parties.
The User shall not be entitled to transfer its rights or obligations according to this User Agreement without Foap’s written consent. Foap is entitled to transfer its rights and obligations according to this User Agreement in its entirety. Foap is entitled to employ subcontractors to perform its obligations pursuant to this User Agreement. Foap is liable for its subcontractors.
This User Agreement shall be governed by and construed in accordance with the laws of Sweden. Disputes arising out of or in connection with this User Agreement shall be settled by the courts of law of Sweden, with the district court of Malmö (swe: Malmö tingsrätt) as the court of first instance. Notices to the User will be sent through the User’s account on Foap Market, through the Foap App or to the e-mail address submitted by the User in the Registration Data. Notices from the User to Foap may be sent via the headline “Contact” on Foap’s web site www.foap.com. Notices shall be deemed to have been received by Foap when Foap confirms receipt by a personal reference (not by auto reply).