FOAP GENERAL TERMS OF USE AND TRADE TERMS
(VERSION 5.0, MARCH 2020)
INTRODUCTION
Welcome to Foap!
By downloading and using the Foap App and/or Foap Market and any thereto related services in any media where such Foap services are provided (jointly "Foap"), you, in your capacity as user of Foap (the "User"), agree that the following general terms of use and trade terms (the "User Agreement"), shall constitute a legally binding agreement between the User and Foap Poland SP Z. O O. and govern the User's use of Foap and the relationship between the User and Foap Poland SP Z. O O.. By downloading and using Foap, the User also agrees that the User Agreement shall constitute a legally binding agreement between the User, whether as Seller or Buyer (as defined below), and any other User in relation to transactions taking place by use of Foap.
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. Foap Poland SP Z. O O. retains the right to request, at any time, verification of the User identity through email with scanned copy of passport or other identification documents, through electronic verification services (such as Jumio or other similar services) or any other way that Foap Poland SP Z. O O. may reasonably request and to immediately terminate, at Foap Poland SP Z. O O.'s sole discretion, this User Agreement in the event such verification in Foap Poland SP Z. O O.'s opinion is not satisfactory. Every User must have a Paypal (or other payment service accepted by Foap Poland SP Z. O O.) account in its own name.
DEFINITIONS AND STRUCTURE OF USER AGREEMENT
In addition to terms defined elsewhere in this User Agreement, the following definitions are used herein:
- "Foap App"is Foap Poland SP Z. O O.'s smartphone application for handling and uploading of photos to Foap.
- "Foap Market"is a marketplace on Foap in which Users can publish photos and offer such photos for sale to other Users who wish to use the photo.
- "Content" means the photos and thereto related information published for sale on Foap.
- A User who uses Foap to publish photos for sale is referred to as a "Seller".
- A User using Foap to purchase photos is referred to as a "Buyer".
- Foap Missions"is Foap Poland SP Z. O O.'s service for brand owners that wish to build dedicated commercial image libraries.
- "Foap Albums"is Foap Poland SP Z. O O.'s service where Users can create compilations of both their own and other Users' photos.
Please note that upon the purchase of photos on Foap, the Seller grants to the Buyer a non-exclusive right of use to such photos, unless otherwise stated in specific terms for a Foap Mission. Thus, a Buyer will not acquire any exclusive rights to any photo purchased through Foap. In case a Buyer is interested in acquiring such an exclusive right to a specific photo, the Buyer may contact Foap Poland SP Z. O O. directly, in order for Foap Poland SP Z. O O. to establish a direct contact with the relevant Seller for further discussions outside the scope of Foap. Any negotiation with the Seller regarding exclusive right to Content will be carried out by Foap Poland SP Z. O O. and Foap Poland SP Z. O O. retains the right to determine, together with Seller, the price for such exclusive Content license to Buyer on a case by case basis. Exclusive license rights will, upon Buyer's acceptance of the terms therefore, be regulated by separate written agreement between the Buyer, the Seller and Foap Poland SP Z. O O..
A. GENERAL RULES FOR CONTENT
A.1. STOLEN PHOTOS ARE PROHIBITED!
Foap Poland SP Z. O O. has zero tolerance for stolen photos! A stolen photo is any photo that the User does not own the legal rights to, such as e.g. a photo that has been found randomly on the Internet, a photo that has been taken by someone else or that the User has downloaded from Facebook or from someone else's blog. All photos which are, or which Foap Poland SP Z. O O. suspects are, stolen will be deleted immediately from Foap together with the user account from which the stolen photo was uploaded. Foap Poland SP Z. O O. may also take legal action against such User. A User is only allowed to upload photos on Foap that the User has taken himself and for which he has obtained the model's approval (if applicable).
A.2. Foap Poland SP Z. O O.'S RIGHT TO REMOVE CONTENT
A key component in Foap is that the Content is of good quality and possible to sell to Buyers through the Foap Market and Foap Missions. Therefore, Foap Poland SP Z. O O. reserves the right to review all Content uploaded to Foap and to remove – at any time – any Content that Foap Poland SP Z. O O. deems, in its own discretion, not to be in accordance with the terms of this User Agreement. Foap Poland SP Z. O O. further reserves the right to remove any Content that Foap Poland SP Z. O O. deems, in its own discretion, (i) does not fulfill the quality requirements and standards set from time to time by Foap Poland SP Z. O O. for Foap, (ii) does not fulfill a need or demand on Foap (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.
A.3. Foap Poland SP Z. O O.'S RIGHT TO CATEGORIZE, TAG, RATE AND COMPILE PHOTOS
On Foap, 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 Foap's web site www.foap.com. Each Seller may suggest to Foap Poland SP Z. O O. whether a photo should be categorized as editorial or commercial, but Foap Poland SP Z. O O. reserves the exclusive right to categorize Content at its own discretion. Foap Poland SP Z. O O. shall further be entitled to create compilations or portfolios of Content (both by the same Seller or combining Content from different Sellers) by use of Foap Albums and otherwise, and to classify, rate or tag Content at its own discretion. Foap Poland SP Z. O O. shall further be entitled to allow its other Users to rate Content submitted by a User to Foap and to create compilations or portfolios of Content by use of Foap Albums.
A.4. USER'S RIGHT TO COMPLAIN AGAINST REMOVAL OR CLASSIFICATION OF PHOTOS
Should a Seller not agree with Foap Poland SP Z. O O.'s decision not to include Content or to remove Content from Foap, the Seller may file an appeal of the decision to Foap's customer support. However, each User is reminded that Foap is run by Foap Poland SP Z. O O. with the intention for Sellers and Buyers to easily find and trade quality photos and that Foap Poland SP Z. O O. has final say on what to offer to Buyers on that marketplace. Thus, the User does not have any unrestricted right to have his/her Content published on Foap. A Seller can always remove a photo from Foap if he/she does not agree with Foap Poland SP Z. O O.'s decisions regarding the categorization or use of the photo on Foap.
B. TERMS OF USE
B.1. SCOPE OF THE SERVICES
Foap consists of the services, the systems, the information and the products (including software) which appear, from time to time, in the description of Foap on its web site www.foap.com. Foap Poland SP Z. O O. 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 on the servers provided by Foap Poland SP Z. O O., through use of the Foap App (and any other application made available by Foap Poland SP Z. O O. from time to time) or through connection to Foap via a web browser. The User is aware and accepts that the User's usage of Foap 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 Foap.
Foap Poland SP Z. O O. undertakes to take reasonable steps to ensure that Foap is accessible via the Internet 24 hours a day, seven days a week. However, Foap Poland SP Z. O O. 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. The User is aware that Foap may be closed down with immediate effect if Foap Poland SP Z. O O. deems necessary for security or other reasons.
Foap Poland SP Z. O O. reserves the right to change, add or remove functions in Foap and to unilaterally change, make additions, and in other ways amend the terms of this User Agreement at any time. Foap Poland SP Z. O O. shall notify the User through the User's account on Foap, at Foap's web site www.foap.com 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 Foap that Foap Poland SP Z. O O. makes. In case the User does not accept such material change of Foap or the User Agreement, the User may, within thirty (30) days from receipt of Foap Poland SP Z. O O.'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 Poland SP Z. O O. notified the User of the changes, shall be deemed to have accepted such changes.
Foap Poland SP Z. O O. is liable for ensuring that Content that is uploaded from the Foap App to Foap by a Seller is stored and presented in the same format as uploaded, or such other compatible format as Foap Poland SP Z. O O. may from time to time use to present Content on Foap. However, Foap Poland SP Z. O O. is not liable for any disruptions or misrepresentations of the Content which occur during the transfer via the Internet.
Foap does not protect against viruses or other harmful code and the User is aware that all opening of files available on Foap is made at the User's own risk. Foap Poland SP Z. O O. does not give any warranty regarding the availability of Foap and does not warrant that Foap is free from defects.
B.2. REGISTRATION AND PROCESSING OF USER INFORMATION
Upon registration of a Foap user account, 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 Poland SP Z. O O. 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 on behalf of the legal entity. If the User submits inaccurate, incomplete or outdated Registration Data, Foap Poland SP Z. O O. 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
In connection with registration, each User is further required to submit payment details regarding 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 from time to time are listed on Foap and the User must register with either of these services to be able to use Foap.
Business Users wishing to receive fully stated invoices for purchases of Content via Foap can create a "Foap Business Account" by submitting the invoicing details requested by Foap Poland SP Z. O O.. The Foap Business Account is subject to the terms and conditions of this User Agreement.
The User shall ensure that the user account and the password which the User registers for its use of Foap 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 Poland SP Z. O O. has blocked the access to Foap for a specific User identity.
Foap Poland SP Z. O O. 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), as well as information about the User's use of Foap such as ratings data, geotags and information about uploading and purchasing of Content, (collectively the "Personal Data") in order to supply and administer Foap and to fulfill its obligations under the User Agreement. To the extent necessary for Foap Poland SP Z. O O.'s supply of its services, Foap Poland SP Z. O O. may transfer the Personal Data to service providers acting on behalf of Foap Poland SP Z. O O. and to Foap Poland SP Z. O O.'s partners. Foap Poland SP Z. O O. and/or its partners are entitled to process the Personal Data for marketing, campaigns, offers and new products or services that are offered within the scope of Foap by Foap Poland SP Z. O O. or its partners. The User or the User's contact persons are entitled to access the Personal Data that Foap Poland SP Z. O O. 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. By accepting this User Agreement, the User consents to Foap Poland SP Z. O O.'s processing of Personal Data in accordance with this Section. Foap Poland SP Z. O O. is not entitled to submit User information to anyone other than the partners who, together with Foap Poland SP Z. O O., provide services within the scope of Foap.
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 Foap and for all data that the User stores on Foap Poland SP Z. O O.'s servers. Foap Poland SP Z. O O. does not and cannot review all Content uploaded to Foap and is not responsible for the Content. Any screening of Content performed by Foap Poland SP Z. O O. should be considered only as a courtesy and does not limit the User's responsibility for the Content.
The User may use Foap only in accordance with the User Agreement and Foap Poland SP Z. O O.'s from time to time applicable instructions. The User is not entitled to use Foap in any way that may overload, disturb, harm, inactivate or impair Foap, or use Foap 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 Foap 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), Content with nudity 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 Poland SP Z. O O.'s trademarks or distinctive marks in any way other than has been explicitly consented to by Foap Poland SP Z. O O..
By agreeing to this User Agreement the User consents to Foap Poland SP Z. O O.'s processing and storing of the Personal Data and the Content, and to disclosing Personal Data or Content if Foap Poland SP Z. O O. 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 aw; or (d) protect Foap's, its users or the public's interests, rights, property or personal safety.
If a User finds that Content available on Foap 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 Poland SP Z. O O. reserves the right to remove the Content in question either temporarily or permanently.
B.4. GRANT OF LICENSE TO THE CONTENT TO Foap Poland SP Z. O O.
Each Seller that uploads Content for sale on Foap hereby grants to Foap Poland SP Z. O O. a worldwide, non-exclusive, royalty-free, transferable license (with right to sub-license) to use, reproduce, distribute and display as well as to grant to third parties and Foap Poland SP Z. O O.'s partners a right to sublicense, Content within the scope of the various functionalities of Foap from time to time and within the business of Foap Poland SP Z. O O., including without limitation promoting Foap or redistributing Foap in any media formats and through any media channels (including promotion campaigns in social media), for as long as the Content is made available by the Seller on Foap.
Foap Poland SP Z. O O. 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 Poland SP Z. O O. 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 in Section C below.
For the avoidance of doubt, the grant of a perpetual license as set out in Section C means that the Content License will remain in full force and effect even if the Content to which the license refers has been removed or deleted from Foap. Thus, removal/deletion of Content from Foap does not affect Content Licenses sold prior to such removal/deletion.
The extent of licensed rights is defined in Foap General Terms of Use and Trade Terms as well as License Terms of partner platforms being in effect at the time of license purchase.
B.5. PRICING OF CONTENT
By uploading Content to Foap, the Seller agrees to have such Content published for sale on Foap and its partners’ platforms at such terms and prices that Foap Poland SP Z. O O. or its partners apply at the time of license purchase (as further detailed in Section C below).
Foap Poland SP Z. O O. 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. Foap Poland SP Z. O O. 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 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) executed through Foap Market, the Buyer agrees to pay the defined price stipulated on Foap 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 Poland SP Z. O O. for its use of Foap 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.
The License Fees generated by each Seller are hereinafter referred to as that Seller's "Commissions".
C.2. LICENSE TERMS FOR CONTENT LICENSES, PROHIBITED USES
Subject to completion of the purchase process on Foap 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, worldwide and fully-paid right of use to the Content for any purpose, whether commercial or non-commercial, including the right to modify, reproduce, publish and display the Content, and create derivative works thereof, in any manner (the "Content License"). However, the Buyer may not use the Content for any uses that are prohibited according to the below ("Prohibited Uses").
Prohibited Uses are:
- any use in breach of applicable law (including without limitation 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, including without limitation, use of Content for dating, pornographic or other sexual purposes, or any use that Foap Poland SP Z. O O. considers, in its own discretion, harms or may be harmful to Foap Poland SP Z. O O.'s brand and/or good reputation;
- 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,
- any resale or sub-licensing,
- for Content marked as "Editorial" or marketed under the Editorial section of Foap, any commercial, promotional, advertising or merchandising use. Notwithstanding the above, Content Licenses may be exclusive instead of non-exclusive, if such exclusivity is specifically agreed between the Buyer and Seller in the terms for a Foap Mission or otherwise.
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, that the Seller has received all required consents from any and all private individuals participating in Content ("Model Releases"). Upon request from Foap Poland SP Z. O O., the Seller undertakes to provide such written or other evidence as Foap Poland SP Z. O O. may reasonably require confirming such Model Releases from participating individuals/models in the Content. Foap Poland SP Z. O O. retains the right to request additional Model Releases for any uploaded 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. For the avoidance of doubt, this means that Foap Poland SP Z. O O. will not collect property releases and shall not be responsible for obtaining any such consent, unless otherwise expressly agreed in writing between Foap Poland SP Z. O O. and a Buyer
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 Poland SP Z. O O. 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 Poland SP Z. O O. 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, the Seller further represents and warrants to the Buyer and to Foap Poland SP Z. O O. that the Content has not been manipulated, modified or processed in any way that might affect the integrity of the Content.
OTHER THAN AS EXPRESSLY PROVIDED IN THIS USER AGREEMENT, THE CONTENT IS PROVIDED "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. 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
SALE THROUGH FOAP MARKET
Payment of the Content Fee is made by the Buyer through the purchase process on Foap and the payment solution(s) made available thereon by Foap Poland SP Z. O O.. In relation thereto, Foap Poland SP Z. O O. 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 Poland SP Z. O O.'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 prepaid credits, which the Buyer can purchase from Foap Poland SP Z. O O. for future use on Foap, it is expressly noted that such credits are non-refundable and that the Buyer cannot request repayment of such credits in cash. Unused prepaid credits on Foap will be automatically cancelled without further notice if the Buyer has not used credits to purchase any Content Licenses on Foap during a consecutive period of twelve (12) months.
SALE THROUGH Foap Poland SP Z. O O. PARTNERS’ PLATFORMS
The Seller receives 50% of the licence or sublicense fee that Foap Poland SP Z. O O. actually receives after deduction of any applicable taxes and dues.
C.8. RELEASE OF COMMISSIONS TO SELLERS
Commissions will be accumulated on each Seller's user account on Foap. The Seller may request Foap Poland SP Z. O O. to release the Commissions received by Foap Poland SP Z. O O. on behalf of the Seller through the "Cash Out"function connected to the Seller's user account once the minimal Commission level, defined by Foap Poland SP Z. O O. or its partners, is reached. If such a release request is received by Foap Poland SP Z. O O. not later than the last day of 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 the following calendar month as per the Payment Data registered by the Seller. Said payment shall be considered as full payment for the Content Licenses sold by the Seller. Foap Poland SP Z. O O. retains the right to provide other solutions for "Cash Out" which in such event will be described on Foap's web site www.foap.com and/or in the Foap App.
If the Seller has not requested release of accumulated Commissions 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 Poland SP Z. O O. to release accumulated Commissions, such Commissions will be forfeited by the Seller and will accrue to Foap Poland SP Z. O O..
Foap Poland SP Z. O O. retains the right to adjust payments made to the Seller and to reclaim any amount which incorrectly has been paid out to Seller, no matter the reason for such incorrect disbursement.
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 such claim or dispute, Foap Poland SP Z. O O. may (but has no obligation to) release relevant Registration Data to the relevant party against which the Seller/Buyer has a claim. Each of the Seller and Buyer agrees to the release of such Registration Data if Foap Poland SP Z. O O. so decides. Apart from any such release of Registration Data, Foap Poland SP Z. O O. 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 Poland SP Z. O O. in relation thereto.
C.10. DAMAGED OR CORRUPT CONTENT
In the event any Content to which a Buyer has purchased a Content License hereunder is damaged or corrupt, the Buyer shall immediately upon receipt of such damaged/corrupt Content notify Foap Poland SP Z. O O. thereof, through contacting Foap Poland SP Z. O O.'s support (through the address stated on www.foap.com), and present evidence of the damaged/corrupt Content. Provided that Foap Poland SP Z. O O. can confirm that the Content delivered is damaged/corrupt, Foap Poland SP Z. O O. shall provide the Buyer with a new, functioning version of the Content within twenty-four (24) hours from Foap Poland SP Z. O O.'s receipt of the claim. If Foap Poland SP Z. O O. is not able to provide such a new, functioning version of the Content within the above time period, Foap Poland SP Z. O O. shall reverse the transaction and refund the Content Fee paid by the Buyer.
C.11. LIMITATION OF LIABILITY FOR FOAP FOR TRANSACTIONS
The Seller and the Buyer recognize that Foap Poland SP Z. O O. is not an auctioneer, but merely the provider of Foap as a transaction platform enabling Sellers and Buyers to sell/buy Content Licenses. Thus, Foap Poland SP Z. O O. 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.
Foap Poland SP Z. O O.'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 Poland SP Z. O O. grants each User a non-exclusive, non-transferable, worldwide and revocable license to install and use the Foap App (and any other application made available by Foap Poland SP Z. O O. from time to time) and any software included in Foap, including connecting media and specifications, and instructions for handling of such software (collectively the "Software"). Foap Poland SP Z. O O. 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 Poland SP Z. O O. 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 Poland SP Z. O O.. 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 Poland SP Z. O O.'s written consent. Upon termination of the User Agreement, the Software shall be uninstalled by the User. Foap Poland SP Z. O O. 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 Foap is provided through guidelines, FAQ and other support documents available from time to time on Foap's web site, www.foap.com. Foap Poland SP Z. O O. 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 Poland SP Z. O O. or an action is brought against Foap Poland SP Z. O O. due to the User's use of Foap, the User undertakes to indemnify Foap Poland SP Z. O O. for any harm, loss or damage that is inflicted upon Foap Poland SP Z. O O. 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 Poland SP Z. O O. of the claims or of the fact that actions have been brought against Foap Poland SP Z. O O..
D.4. LIMITATION OF LIABILITY
Foap Poland SP Z. O O. 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 Foap or the User's use of Foap. Foap Poland SP Z. O O. 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, or for any misuse of Content published on Foap. Foap Poland SP Z. O O.'s liability shall be limited to the above stated except in case of gross negligence or intent. Foap Poland SP Z. O O.'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 USD 100. Claims in excess of this sum cannot be made against Foap Poland SP Z. O O. 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 the User first signs in on Foap, or otherwise accepts this User Agreement, 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 and is effective immediately. Termination by Foap Poland SP Z. O O. is made through notification to the User through the User's account on Foap 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 will automatically cease. Foap Poland SP Z. O O. shall be under no obligation to store or preserve any Content of a User available on Foap upon such termination and shall immediately upon termination have the right to remove and discard such Content. Upon termination of the User Agreement, the User shall further cease use of the Foap App (and any other applications made available by Foap Poland SP Z. O O. from time to time) and uninstall it from any and all of the User's devices where it is installed.
Foap Poland SP Z. O O. retains the right to immediately terminate the User Agreement and/or close down, wholly or partly, the User's access to Foap for any User that uses Foap in breach of this User Agreement or in breach of Foap Poland SP Z. O O.'s instructions, or for Users that Foap Poland SP Z. O O. otherwise considers risk seriously disrupting the usage of Foap Poland SP Z. O O.'s systems or that abuses Foap. In addition, Foap Poland SP Z. O O. 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 Poland SP Z. O O.'s termination of the User Agreement for User's breach of contract, Foap Poland SP Z. O O. retains the right to request compensation from User for all damage caused by the User's breach of contract.
D.6. MISCELLANEOUS
This User Agreement comprises the entire agreement between the parties regarding the User's use of Foap. Except for Foap Poland SP Z. O O.'s right to change, make additions and in other ways amend prices and 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 Poland SP Z. O O.'s written consent. Foap Poland SP Z. O O. is entitled to transfer its rights and obligations according to this User Agreement in its entirety. Foap Poland SP Z. O O. is entitled to employ subcontractors to perform its obligations pursuant to this User Agreement. Foap Poland SP Z. O O. is liable for its subcontractors.
This User Agreement shall be governed by and construed in accordance with the laws of Poland. Disputes arising out of or in connection with this User Agreement shall be settled by the courts of law of Poland, with the district court of Warsaw (Sw: Sąd Rejonowy dla Warszawy-Śródmieścia) as the court of first instance.
Notices to the User will be sent through the User's account on Foap or to the e-mail address submitted by the User in the Registration Data. Notices from the User to Foap Poland SP Z. O O. 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 Poland SP Z. O O. when Foap Poland SP Z. O O. confirms receipt by a personal reference (not by auto reply).
View March 2017 Terms of Service
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