FotoSpout Contributor Agreement Snapshot
The following is only a snapshot (not the full terms) of the FotoSpout Contributor Agreement. The full terms of the Contributor Agreement appear immediately below this summary, which has been provided here for convenience to highlight some important points.
+ You are entering into an agreement to submit non-exclusive photos to FotoSpout.com for sale to, or free download by FotoSpout Members via a royalty-free license agreement.
+ When you submit a Photo to FotoSpout, you retain the copyright of your image.
+ You are responsible for the photos or other content you upload. It must be yours and yours alone.
+ You agree to adhere to submission guidelines and pre-determined prices set by the FotoSpout Site administrative team.
+ All Photos are licensed to FotoSpout Members on a non-exclusive, royalty-free basis.
+ You can terminate your membership at any time.
+ You agree that you have been truthful when submitting photos, especially related to photos being your original work
+ You accept that if your Photo is found to be in breach of the Contributor Agreement, the consequences are your own responsibility.
+ We will pay you 50% of any licensing fees generated by your Photos via the FotoSpout.com Site
+ We will contribute 25% of any licensing fees generated by your Photos via the FotoSpout.com Site toward agencies helping to bring clean and safe drinking water to people in developing nations
+ We will communicate any sales or free photo downloads to you via the Contributor Dashboard section of the Site or through other reports
+ We will pay you on at least a monthly basis, when your balance is over $10
+ We may use your submitted Photos or other content to promote the Site, on our social media accounts and in other marketing material
FotoSpout Contributor Agreement
Last updated: October 11, 2017
THIS IS A LEGAL DOCUMENT THAT AFFECTS YOUR RIGHTS AND OBLIGATIONS. PLEASE READ THESE TERMS CAREFULLY BEFORE ENTERING INTO THIS AGREEMENT.
ACCEPTANCE OF TERMS
“Site” means the FotoSpout website, published at www.fotospout.com
“Contributor” means any person who has been granted approval by the Site administrative team to submit Photos or other content to the Site.
“Photo” means a photographic image produced by a camera or other image recording device and includes all keywords or tags (whether selected by the Contributor or as subsequently edited by the FotoSpout Site administrative team), photo description, and metadata associated with the submitted Photo.
“Approved Photo” means the digital image uploaded to the FotoSpout.com site by you, or uploaded by the Site administrative team at your request, and subsequently approved by the Site administrative team for inclusion in the photographic collections published on the Site.
“FotoSpout License Agreement” means the agreement under which an Accepted Photo is licensed to a Licensee.
“Item Price” means the license fee in U.S. Dollars (USD) in relation to the Accepted Photo as set by the Site administrative team, or as set by the Licensee under the “Pay What You Wish” pricing option, charged to Licensees in accordance with the terms of the FotoSpout License Agreement.
“Licensee” means any person who is granted a Royalty-Free License to use of an Approved Photo accessed through the Site in accordance with the terms of the FotoSpout License Agreement.
SUBMISSION, APPROVAL AND OWNERSHIP OF IMAGES
All Intellectual Property Rights in the Approved Photo shall at all times be and remain your property, subject to the terms of this Agreement.
The submission of Photos or other content to the Site is subject to the submission guidelines and procedures as delineated on the Site, which form part of this Agreement.
You acknowledge that no Photo or content may be submitted or uploaded to the Site if it infringes any intellectual property or other rights of any third party or if it breaches any applicable law.
FlashKite, in its sole and absolution discretion, may approve or reject any Photo submitted by a Contributor. FlashKite reserves the right to remove Approved Photos from any section of the Site, at any time and without prior notice, at its sole discretion. FlashKite shall have the right to edit any tags, meta-data, photo description or any other content published on the Site for any reason.
You agree that although Photos and Content are reviewed by the Site administrative team, that you remain solely responsible for the content you upload or publish to the Site, including content you authorize the Site administrative team to publish on your behalf, and for all consequences of your uploading/publishing Content to the Site.
GRANT OF LICENSE
You grant to FlashKite complete and sole discretion regarding the terms and conditions of licensing the Approved Photo to Licensees and any other third party and acknowledge that FlashKite does not guarantee that the Approved Photo will be licensed accordingly. Notwithstanding the foregoing, FlashKite acknowledges it has no right to assign any Intellectual Property Rights in the Approved Photo.
You acknowledge that FlashKite will have the right, but not the obligation, to grant Site Members a perpetual, non-exclusive, worldwide, non-transferable sub-license to use, reproduce, exhibit, perform, publish publicly, display, distribute, broadcast and transmit Photos, and to create derivative works of submitted content in accordance with the terms and conditions of the FotoSpout License Agreement.
In its role as owner and manager of the FotoSpout.com website, FlashKite does not guarantee the quality or legality of Photos or other content submitted by Site Contributors. Accordingly, you hereby irrevocably and unconditionally release and waive any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, that you may have or assert against FlashKite relating to or arising out of the sub-license to or the use of Photos or other content.
FlashKite shall not be liable to you for any loss or damage (whether direct, indirect or consequential and whether economic or other), costs or expenses arising from: (1) a FotoSpout Licensee, or any other third party, breaching and/or exceeding the rights granted to them via the FotoSpout License Agreement for an Approved Photo published on the Site; (2) any unauthorized access to the Site which is malicious or technologically harmful which results in a breach of your Intellectual Property Rights in the Approved Photo.
All photos or other Content must be submitted in accordance with the Contributor guidelines w3or as otherwise directed by the Site administrative team. By submitting Photos or other content for publishing on the Site, you acknowledge that you have read, understand and accept the latest version of the Contributor submission guidelines as posted on the Site.
You acknowledge that you will not receive compensation for any non-License revenues received by FlashKite from sponsors or advertisers (including digital advertising units such as banner ads) whose advertising content may appear in any section of the Site.
You hereby grant FlashKite the right, free of charge, to use in any way any Approved Photo or other content uploaded to the Site for its own business purposes relating to the promotion of the FotoSpout Site as well as for the promotion of licensing of Approved Photos. For the avoidance of doubt, you acknowledge that if we use your submitted Photos or other content to promote the Site or your Photos, then we will owe no compensation to you.
REPRESENTATIONS AND WARRANTIES
By submitting any Photos or other content to the Site, you represent and warrant to FlashKite that:
(a) You have legal capacity and the full power and authority to enter into this Agreement;
(b) You are the sole and exclusive legal and beneficial owner of all proprietary rights (including, but not limited to copyright) in and to the Photos or other content and you have the full right and authority to contract with FlashKite (including to grant the rights hereby licensed to FlashKite) on the terms of this Contributor Agreement;
(c) The Photos or other content you submit to the Site is your original work and has not been copied wholly or substantially from any other source or has in any way been obtained in an unlawful manner.
(d) The Photos or other content you submit are free of encumbrances, neither obscene nor defamatory, do not infringe the copyright, trademark, right of privacy/publicity, or any other right of any third party.
(e) The Photos or other content you submit are not subject to any threatened or pending claim or legal action.
(f) The Photos or other content you submit does not contain any viruses, worms, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of the Site or of any computer software or hardware used the by Site administrative team or by any FotoSpout Member.
(g) You have, for each Photo you submit, obtained all necessary model and property releases required for the use of the Photo or other content contemplated by this Contributor Agreement and these are valid and binding.
PRICING AND PAYMENT
(a) You must select from and set a price from the pricing options established and posted by the Site administrative team. Prices must be set for the Approved Photo in accordance with the submission guidelines posted on the Site. All photos submitted to FotoSpout are currently sold through a Pay-What-You-Wish Pricing Model, giving Members the option to license/download images at zero cost; or, to name their price equal to or greater than $1 (USD).
(b) In full and final consideration of the upload of the Photos and the grant of the rights hereunder, FlashKite agrees to pay you a 50% commission rate in respect of each Approved Photo FlashKite licenses to a FlashKite licensee in accordance with the terms of the FotoSpout Licensing Agreement. You expressly agree and acknowledge that no payment shall be due to you if you a Member selects a $0.00 price and FlashKite subsequently licenses as an Approved Photo to a Licensee at that price. For the avoidance of doubt, you acknowledge that no commission payments shall be due to you in cases where a FotoSpout Member selects a zero price option when going through the site purchase/check-out process.
(c) FlashKite will pay you on at least a monthly basis, when your balance generated by licenses fees exceeds a pre-defined minimum. That pre-defined minimum is currently $10, however is subject to change at FlashKite’s sole discretion. You will be notified if the pre-defined minimum changes. FlashKite will carry over the sum to the following month on a continuous basis until your payout account balances reaches at least the pre-defined minimum.
(d) It shall be your sole responsibility for the filing of all tax returns and the payment of all income tax and charges of a similar nature raised or charged in respect of all monies due to you pursuant to this Agreement.
(e) You expressly agree and acknowledge that any payment due under the Pricing and Payment section of this Agreement is in full and final compensation for all rights granted hereunder and (without prejudice to the generality of the foregoing) you expressly acknowledge that you shall not be entitled to any further fees or compensation from FlashKite in respect of the exploitation of the Approved Photo.
PROTECTION OF INTELLECTUAL PROPERTY
FlashKite shall notify you promptly in writing, providing comprehensive details, if it comes to our attention that any actual, suspected, or threatened infringement of the Intellectual Property Rights in the Approved Photo; any claim made or threatened in the Approved Photo infringes the rights of any third party; or any other claim or charge to which the Intellectual Property Rights in the Approved Photo may be subject.
FlashKite acknowledges that you shall, at your absolute discretion, decide what action to take, if any; that you shall have exclusive control over, and conduct of, all claims and proceedings.
At your cost, FlashKite will provide you with assistance that you may reasonable require in the conduct of any claims or proceedings. You also acknowledge that you shall bear the cost of any proceedings and shall be entitle to retain any monies recovered for your account.
TERM AND TERMINATION
(a) This agreement shall continue until terminated by either party in accordance with the Term and Termination clause of this Agreement.
(b) This agreement may be terminated immediately by either party for failure of the other party to comply with any material term of the agreement, if after thirty 30 days of receipt of notice of such failure, the default is not cured.
(c) You shall have the right to terminate this agreement immediately by either removing an Approved Photo from the Site or by submitting a request in writing to the Site administrative team to close your Site registered account as a FotoSpout Contributor.
(d) Upon termination of this Agreement for any reason and subject to any express provisions set out elsewhere in this Agreement, all rights and licenses granted pursuant to this Agreement shall cease, save that: FlashKite’s right to use the Accepted Photo to promote the Site shall continue following the date of termination, albeit solely for use within existing promotional material at the date of termination; and such termination will not affect the terms of any FotoSpout Licensing Agreement and any such license will continue in full force and effect according to its terms. For the avoidance of doubt, it is re-stated that the termination of this Agreement will not in any way affect the rights of the Licensees under any relevant FotoSpout License Agreement. Accordingly, you acknowledge that any license granted to a Licensee for the Photo submitted by you, will survive termination.
(e) Any monies generated from licenses fees credited to your FotoSpout account shall be transferred to you within 60 business days of the date of termination; and unless already removed, the Accepted Photo shall be removed from the Website within 60 business days of the date of termination.
You agree to defend, indemnify and hold harmless FlashKite, its affiliates and licensors and their respective officers, directors, employees, contractors, agents, licensors and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) resulting from or in connection with:
(a) any breach by you of this Agreement;
(b) any access to or use of the Site (including but not limited to the submission or upload of any Photo or other content) by any person using your FotoSpout account, whether or not authorized by you;
(c) any claim threatened or made by any person against a FlashKite party on the basis that any of your submitted Photos or other content used within the scope of this Agreement infringes the copyright, right to privacy or publicity or any other intellectual property rights of any third party. If we believe, in our discretion, that any situation or matter has arisen which could result in a claim by FlashKite against you under the indemnity in this clause, we are entitled, by notice to you, to assume the exclusive defense of such matter. You will in this case, at your expense, fully cooperate with us in relation to such defense.
GOVERNING LAW; JURISDICTION; DISPUTES
This Agreement is governed by and shall be construed in accordance with the laws of the State of New York, without regard to its conflicts of law provisions. You hereby consent to the personal jurisdiction of the state and federal courts located within such state. All actions, controversies and disputes arising from or relating to this agreement shall be heard and decided exclusively before the courts located within the State, County and City of New York and not elsewhere. This Agreement shall not be governed by the United Nations Convention on Contract for the International Sale of Goods, the application of which is expressly disclaimed. This Agreement shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning of the language hereof. The invalidity or unenforceability of any part of this agreement shall not affect the validity or enforceability of the balance hereof. FlashKite shall have the right to commence and prosecute any legal or equitable action or proceeding before any US or non-US court of competent jurisdiction to enforce this Agreement. In any dispute between you and FlashKite Corporation where FlashKite prevails, FlashKite shall be entitled to recover its reasonable attorney fees, court costs, disbursements, and other legal expenses.
You acknowledge that you may only resolve disputes with FlashKite on an individual basis. As a result, you may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action.
(a) No Waiver: Our failure to enforce or exercise any of these terms is not a waiver of that section.
(b) No Agency Relationship: The relationship between you and FlashKite under this Agreement is that of independent contractors. For the avoidance of doubt, the parties are not partners, joint ventures, partners, principal and agent, nor employer and employee.
(c) No Class Actions: You acknowledge that you may only resolve disputes with FlashKite on an individual basis. As a result, you may not bring a claim as a plaintiff or a class member in a consolidated, class or representative action.
(d) Severability: If a particular term in this Agreement is not enforceable, the unenforceability of that term will not affect any other terms.
CHANGES TO THIS AGREEMENT
If you have any questions related to the FotoSpout Contributor Agreement, we invite you to contact the FotoSpout site administrative team via email at: email@example.com.