(VERSION 3.0, November 2017)
These terms are now replaced with March 2017 Terms of Service.
Welcome to 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 AB 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 AB may reasonably request and to immediately terminate, at Foap AB's sole discretion, this User Agreement in the event such verification in Foap AB's opinion is not satisfactory. Every User must have a Paypal (or other payment service accepted by Foap AB) account in its own name.
The "Foap App" is a 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. 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".
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. 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 AB directly, in order for Foap AB 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 AB and Foap AB 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 AB.
This User Agreement is divided into four separate sections, according to the following:
Foap AB 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 AB suspects are, stolen will be deleted immediately from Foap together with the user account from which the stolen photo was uploaded. Foap AB 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 key component in Foap is that the photos and thereto related information published for sale (the "Content") are of good quality and possible to sell to Buyers through the market place. Therefore, Foap AB reserves the right to review all Content uploaded to Foap and to remove – at any time – any Content that Foap AB deems, in its own discretion, not to be in accordance with the terms of this User Agreement. Foap AB further reserves the right to remove any Content that Foap AB deems, in its own discretion, (i) does not fulfill the quality requirements and standards set from time to time by Foap AB 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.
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 AB whether a photo should be categorized as editorial or commercial, but Foap AB reserves the exclusive right to categorize Content at its own discretion. Foap AB 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, rate or tag Content at its own discretion. Foap AB shall further be entitled to allow its other Users to rate Content submitted by a User to Foap.
Should a Seller not agree with Foap AB'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 AB with the intention for Sellers and Buyers to easily find and trade quality photos and that Foap AB 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. A Seller can always remove a photo from Foap if he/she does not agree with Foap AB's decisions regarding the categorization or use of the photo on Foap.
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 AB 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 AB, through use of the Foap App (and any other application made available by Foap AB 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 AB undertakes to take reasonable steps to ensure that Foap is accessible via the Internet 24 hours a day, seven days a week. However, Foap AB 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 AB deems necessary for security or other reasons.
Foap AB 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 AB 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 AB 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 AB'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 AB notified the User of the changes, shall be deemed to have accepted such changes.
Foap AB 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. However, Foap AB 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 AB does not give any warranty regarding the availability of Foap and does not warrant that Foap is free from defects.
pon 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 AB 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 AB 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 AB. 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 AB has blocked the access to Foap for a specific User identity.
Foap AB 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 administrate Foap and to fulfill its obligations under the User Agreement. To the extent necessary for Foap AB's supply of its services, Foap AB may transfer the Personal Data to service providers acting on behalf of Foap AB and to Foap AB's partners. Foap AB 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 AB or its partners. The User or the User's contact persons are entitled to access the Personal Data that Foap AB 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 AB's processing of Personal Data in accordance with this Section. Foap AB is not entitled to submit User information to anyone other than the partners who, together with Foap AB, provide services within the scope of Foap.
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 AB's servers. Foap AB does not and cannot review all Content uploaded to Foap and is not responsible for the Content. Any screening of Content performed by Foap AB 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 AB'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) 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 AB's trademarks or distinctive marks in any way other than has been explicitly consented to by Foap AB.
By agreeing to this User Agreement the User consents to Foap AB's processing and storing of the Personal Data and the Content, and to disclosing Personal Data or Content if Foap AB 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 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 AB reserves the right to remove the Content in question either temporarily or permanently.
Each Seller that uploads Content to Foap hereby agrees to grant the following licenses for as long as the Content is made available by the Seller on Foap:
To Foap AB: 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 AB'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 AB, including without limitation promoting Foap or redistributing Foap in any media formats and through any media channels (including promotion campaigns in social media). For the avoidance of doubt, the Seller is not entitled to any license fee for Foap AB's use of the Content.
To Foap AB: a worldwide, non-exclusive, royalty-free license to access the Seller's Content through Foap for review only.
Foap AB 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 AB 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.
By uploading Content to Foap, the Seller agrees to have such Content published for sale on Foap at such terms and prices that Foap AB applies from time to time for such sale (as further detailed in Section C below).
Foap AB 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 AB 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.
For any purchase of Content Licenses (as defined below), the Buyer agrees to pay the defined price stipulated on Foap for the relevant Content (the "Content Fee"). The Content Fee consists of:
The License Fee and the Transaction Fee (including applicable value added tax thereon) amounts to fifty (50) percent each of the Content Fee.
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, 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:
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.
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 AB, the Seller undertakes to provide such written or other evidence as Foap AB may reasonably require confirming such Model Releases from participating individuals/models in the Content. Foap AB retains the right to request additional Model Releases for any uploaded Content.
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 AB will not collect property releases and shall not be responsible for obtaining any such consent, unless otherwise expressly agreed in writing between Foap AB and a Buyer.
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.
The Seller represents and warrants to the Buyer and to Foap AB 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 AB 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 AB 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.
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 AB. In relation thereto, Foap AB 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 AB'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 pre-pay credits, which the Buyer can purchase from Foap AB 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 pre-pay 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.
License Fees will be accumulated on each Seller's user account on Foap. The Seller may request Foap AB to release the License Fees received by Foap AB 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 AB 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 AB 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 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 AB to release accumulated License Fees, such License Fees will be forfeited by the Seller and will accrue to Foap AB.
Foap AB 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.
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 AB 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 AB so decides. Apart from any such release of Registration Data, Foap AB 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 AB in relation thereto.
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 AB thereof, through contacting Foap AB's support (through the address stated on www.foap.com), and present evidence of the damaged/corrupt Content. Provided that Foap AB can confirm that the Content delivered is damaged/corrupt, Foap AB shall provide the Buyer with a new, functioning version of the Content within twenty-four (24) hours from Foap AB's receipt of the claim. If Foap AB is not able to provide such a new, functioning version of the Content within the above time period, Foap AB shall reverse the transaction and refund the Content Fee paid by the Buyer.
The Seller and the Buyer recognize that Foap AB 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 AB 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 AB's liability is further limited as set out in Section D below.
Foap AB grants each User a non-exclusive, non-transferable, world-wide and revocable license to install and use the Foap App (and any other application made available by Foap AB 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 AB 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 AB 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 AB. 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 AB's written consent. Upon termination of the User Agreement, the Software shall be uninstalled by the User. Foap AB 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.
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 AB does not warrant the availability of any User support for any specific question or support matter.
If claims are made against Foap AB or an action is brought against Foap AB due to the User's use of Foap, the User undertakes to indemnify Foap AB for any harm, loss or damage that is inflicted upon Foap AB 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 AB of the claims or of the fact that actions have been brought against Foap AB.
Foap AB 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 AB 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 AB's liability shall be limited to the above stated except in case of gross negligence or intent. Foap AB'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 AB by a User. This limitation shall apply even if other warranties or remedies under this User Agreement fail to fulfill their purposes.
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 AB 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 AB 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 AB from time to time) and uninstall it from any and all of the User's devices where it is installed.
Foap AB 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 AB's instructions, or for Users that Foap AB otherwise considers risk seriously disrupting the usage of Foap AB's systems or that abuses Foap. In addition, Foap AB 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 AB's termination of the User Agreement for User's breach of contract, Foap AB 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 Foap. Except for Foap AB'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 AB's written consent. Foap AB is entitled to transfer its rights and obligations according to this User Agreement in its entirety. Foap AB is entitled to employ subcontractors to perform its obligations pursuant to this User Agreement. Foap AB 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 (Sw: Malmö tingsrätt) 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 AB 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 AB when Foap AB confirms receipt by a personal reference (not by auto reply).