Photovisi Designer Terms and Conditions
Effective date: 1 August 2015
Amsterdam, The Netherlands
Article 1. Applicability
- These General Terms and Conditions (hereinafter referred to as: ”Designers Terms”) apply to any agreement between Photovisi and a natural person or legal entity (hereinafter referred to as: “Designer”) concerning the supply of digital designs (hereinafter referred to as: “Designs”). In addition, the Conditions of use related to the Photovisi website, the Design Overview and Applications (including White Label Applications) supplied by Photovisi (collectively called: the “Service”) also apply. In the event of a conflict between the Designers Terms and the Conditions of use, the Designers Terms shall prevail in so far as it concerns the supply of Designs to Photovisi Designers.
- In the event that Photovisi permitted deviations from the Designers Terms for a short or a longer period of time, whether or not implicitly, then this shall not affect its right to demand direct and strict compliance with these Designers Terms as yet. The User cannot derive any rights from the way in which Photovisi apply the Designers Terms.
- The Designers Terms are also applicable on all agreements with Photovisi for the execution of which external parties need to be involved. In terms of the Designer, these third-parties can appeal directly to the Designers Terms, including any limitations or exclusions of liability.
- Should one or more provisions of the Designers Terms or of any other agreement concluded with Photovisi be in breach of a mandatory statutory provision or any applicable legal provision then the relevant provision shall expire and shall be replaced by a new, legally permissible and comparable provision to be established by Photovisi.
Article 2. Publication and approval of Designs
- A person must be at least 14 years of age to register as a Designer. Minors must have permission of at least one of their parents before they open an account with Photovisi.
- Once a Designer opened a Designer account (hereinafter referred to as: the "Account") with Photovisi, the Designer can upload the Designs designed by him (or her) to the Photovisi website (hereinafter referred to as: the "Application").
- Before a Design can be displayed on the overview page and be used on the Photovisi website (hereinafter referred to as: "Design Overview") and in the non-branded software made available by Photovisi to third parties (hereinafter referred to as: the "White Label Application"), the Design will first be approved by Photovisi. Photovisi will also check whether the Design complies with the guidelines as set by Photovisi as contained in these Designers Terms.
- The Designer acknowledge and agree that Photovisi imposes certain guidelines on the Design and it approves or rejects the Design for use on the basis of these guidelines. Approval is entirely at Photovisi's own discretion. The Designer cannot derive any rights from the way in which Photovisi applies the directives, or grants or withholds approval.
- Photovisi reserves the right to remove Designs from the Service for any reason and without prior notice. Designs that are removed from the Service, may be stored by Photovisi, for example, to comply with certain legal obligations, but this may possibly not be retrieved and/or accessed without a court order.
Article 3. License
- Photovisi does not acquire any ownership of the Design that the Designer publishes on or through the Application. Instead, the Designer grants to Photovisi a non-exclusive, fully paid and royalty-free, transferable, sublicensed, global and unlimited license to use and exploit (sell) the Design and the right to grant the Design (for example, in White Label applications) in sub-license.
- The Designer declares and guarantees that: (i) The Designer is the owner of the Design that is published by the Designer on or through the Application or he/she is otherwise entitled to grant the rights and licenses that are listed in these Designers Terms, (ii) publishing and use of the Design on or through the Service doesn't infringe on the rights of third parties , including, but not limited to, privacy rights, publicity rights, copyrights, trademarks and/or other intellectual property rights, (iii) the Designer agrees to pay all royalties, fees and other money that may be due because of the Design that the Designer publishes on or through the Service, and (iv) the Designer has the legal right and authority to accept these Conditions of use in his/her jurisdiction.
- Violation of these Designers Terms may, to Photovisi's sole discretion, result in termination of the agreement between Photovisi and the Designer and closure of the Designer's account. The Designer agrees that Photovisi cannot and will not carry any responsibility for the Designs that is published on the Service and that the Designer uses the Application entirely at its own risk. If the Designer violates the letter or spirit of these Designers Terms or represents a legal risk or a risk of any other nature for Photovisi, Photovisi is entitled to discontinue supplying the Application to the Designer, either completely or partially.
Article 4. Sale of Designs
- Designs approved by Photovisi are displayed in the Service. Third parties who use the Photovisi website or a White Label Application (hereinafter referred to as: the "User") can then use the Design – whether against payment or not – and use this in the form of a digital file or physical product (hereinafter collectively: the "Product").
- Free Products can be supplied by Photovisi with a quality limitation, including but not limited to a low resolution or with a watermark or a combination of limitations. If paid, the User will receive a Product without quality limitations.
- The fee that a User needs to pay (hereinafter referred to as: the "Sales price") in order to make use of a Design is determined by Photovisi per Design, to its sole discretion.
Article 5. Commission amount
- When a Design is used by a User against payment (hereinafter referred to as: the “Sale”) the Designer is entitled to a percentage of the Sales price. Photovisi and the Designer mutually agrees on the percentage of the Sales price that the Designer will receive.
- Photovisi is free to offer Designs at a special price or less discount. The Designer cannot derive any rights from the way in which Photovisi determines the Sales price or any discounts possibly given by Photovisi on the Design.
- For Designs that are used by a User based on a Photovisi Subscription, the Designer receives a percentage of a proportionate part of the subscription fee based on the number of downloads that are allowed per subscription.
- When Photovisi, for whatever reason, pays or assigns a partial or complete refund to a user, a proportionate amount of reimbursement is deducted from the Designer. The decision to refund a User's purchase is entirely and exclusively that of Photovisi.
Article 6. Payment of commission
- The Designer acknowledges and agrees that payment of relevant commission from Sales shall exclusively be made by one of the Payment Service Providers appointed by Photovisi (hereinafter referred to as: “PSP”).
- The Designer shall at its own expense ensure a link to the relevant PSP so that the Designer can receive payments via this PSP. The Designer must ascertain whether the PSP makes payments to the country where the Designer is located. Photovisi doesn't accept any liability for damage the Designer suffers if the PSP do not effect payments to the country where the Designer is located.
- When a Sale takes place and no refund is made, the fees relating to this Sale shall be paid to the Designer at the end of the month, following the month in which the Sale took place. Payment of commission of a Sale where the User submitted a complaint, shall be suspended until Photovisi has reached a decision with regard to any refund to the User of the Purchase price.
- If the User submits a complaint after the Designer already received the commission payable for that from Photovisi and Photovisi decides to refund the Purchase price to the User, the commission already paid to the Designer by Photivisi in respect of the associated Sales commission shall be deducted from any future payments to the Designer. If settlement did not take place within ninety (90) days, Photovisi shall be entitled to send an invoice for the refund amount to the Designer. The Designer will pay this invoice within thirty (30) days.
- The Designer shall ensure that Photovisi have the appropriate (payment) data of the Designer in order to facilitate a pay out. If Photovisi doesn't have the correct information as a result of which payment cannot be made, Photovisi shall suspended the payment until Photovisi receives the necessary (payment) information. If a payment is suspended, Photovisi will inform the Designer by e-mail.
- Photovisi takes all necessary precautionary measures within reason to guarantee the security of the payment method offered as far as possible. Photovisi nevertheless doesn't accept any liability for damage and/or loss resulting from a violation/breach of the security/security system of the offered payment system or the PSP (or errors in the PSP's software). This is only different if said damage and/or said loss results directly from a serious error on the part of Photovisi and/or its employees. In this context, the Designer shall indemnify Photovisi against any claim in this regard.
- Where taxes and other Government levies are payable on commission paid by Photovisi to Designer, this shall be borne by the Designer. The Designer is responsible for the timely, correct declaration and payment of the commissions received by the Designer to the relevant (government) authorities. The Designer indemnifies Photovisi against all claims in this regard.
- The Designer bears the loss due to fluctuations in currency exchange rates and possible currency conversions necessary for the pay-out.
Article 7. Maintenance, updates and malfunctions
- Although Photovisi intends to make the Design Overview and White Label Applications collectively: the "Service") available as much as possible, it is possible that the Service may be interrupted, for example due to scheduled maintenance activities or upgrades, emergency repairs or failed telecommunications links and/or equipment.
- Photovisi will endeavour to fix any errors or malfunctions within a reasonable period of time, but Photovisi doesn't guarantee that it will (be able to) fix all errors and malfunctions. The Service is offered “as is”.
- Photovisi is allowed to change the Service at any time, at its sole discretion, if Photovisi deems this necessary and only as far as the agreement concluded with the Designer is not affected. Photovisi does not require any prior consent of Designer.
- Photovisi is entitled to temporarily disable (part of) the Service in the context of planned maintenance, an update or for fixing severe malfunctions and threats without prior notice to the Designer and without being liable to pay any compensation or any refund.
- Photovisi is not liable for damage that the Designer may suffer because of lost revenue due to maintenance work (planned or unplanned), malfunctions and adjustments in or on the Service.
Article 8. Storage and loss of data
- Photovisi advises the Designer to make its own (local) back-ups of the Designs. Photovisi is not a back-up service and the Designer agrees that the Designer will not exclusively rely on the Application for back-ups or storage of Designs.
- Photovisi does not accept responsibility for any modification or suspension or discontinuance of the Service, or for the loss of Designs. The Designer also acknowledges that the security of internet connections can never be guaranteed fully and that sending Designs or other information by internet may therefore not be completely secure.
Article 9. Indemnification
The Designer agrees that all Designs that the Designer posts on the Service is non-confidential and free from third-party property rights, and that Photovisi is not liable for any use or disclosure of the Designs. The Designer indemnifies Photovisi against all claims in this regard.
Article 10. Termination of the Service, accounts and user names
- Photovisi reserves the right to change the Service or to suspend the Designer's access to the Application for any reason without prior notice, at any given time and without any liability to the Designer.
- Photovisi reserves the right to terminate the right to use a user name for any reason. The Designer cannot derive any rights from a chosen and/or used user name.
- The Designer can deactivate his account by signing in to the Service and by terminating his account online.
- When Photovisi terminates the Designer's access to the Application or if the Designer deactivates his account, the Designs and any other information and data will no longer be accessible through the account (for example, the Designer can no longer navigate to the user name and the account), but the Designs, information and data can remain on the Service.
- Upon termination, all licenses and other rights granted to the Designer under these Designers Terms, are terminated immediately.
Article 11. Liability
- Unless there is intent or gross negligence, Photovisi's liability for direct damages suffered by the Designer as a result of an accountable failure in the fulfilment of Photovisi's obligations under the agreement, or by a wrongful act by Photovisi, its employees or third parties appointed by Photovisi, as well as damage caused by death or personal injury or for material damage of goods per event or a series of related events, shall be limited to the amount that the insurance will pay. If the insurance doesn't make any payment, the liability shall be limited to € 10,000.00 (in words: ten thousand euros).
- Photovisi's liability for indirect damage, including consequential damages, lost profits, lost savings, damage or loss of (commercial) data, data on Photovisi's storage or equipment and damage due to business stagnation, shall be excluded.
- Photovisi is not liable for the way in which third parties make use of White Label Applications, including the party who makes use the Photovisi White Label Application. Photovisi accepts no liability for damage that the Designer suffers because of the manner in which third parties use the Designs and/or the White Label Application, including any infringement of the Designer's copyrights.
- Photovisi is also specifically not liable for loss of stored data in the Application. The Designer is at all times aware of the fact that the Application is not intended for storage or backup purposes.
- Photovisi's liability due to attributable failure in the performance of the agreement arises only if the Designer informed Photovisi properly and without delay of its default, in writing, with a reasonable period for remedying the shortcoming, and Photovisi remains in default of his obligations, even after that term.
Article 12. Amendment to the Designers Terms
- Photovisi is entitled to change these Designers Terms, provided that Photovisi informs the Designer of the intended changes at the latest thirty (30) calendar days before the implementation of the changes. Minor changes may be made at any time.
- If the Designer objects to the changes in a timely manner, Photovisi will reconsider the changes and revoke this if Photovisi deems the objection justifiable.
- If, however, Photovisi continues with the changes, despite the Designer's objections, the Designer shall have the right to terminate the agreement with Photovisi from the time the changes come into force.
Article 13. Other conditions
- Dutch law is applicable on the agreement between the Designer and Photovisi, as well as the use of the Service.
- For so far as the rules of imperative law doesn't decide otherwise, all disputes that may arise from the Service shall be brought before the competent court in the District of Photovisi's place of establishment.
- The version of any communications retrieved or stored by Photovisi and administration is regarded as authentic and compelling evidence, in the absence of proof to the contrary by the Designer.
- In these Designers Terms, "in writing" also includes communication by e-mail, provided that the identity of the sender and integrity of the content is suitably established.
- If the Designer is acquired by a third party or if the Designer acquires a third party, he/she shall always report this immediately to Photovisi once the Designer has become aware of the acquisition.
- Photovisi is entitled to transfer its rights and obligations under the Agreement to a third party that takes over the Service or the relevant business activity from it.
- If one or more provisions under these Designers Terms are void or voidable, in its entirety or partly, at any time, then the remainder of these Designers Terms shall remain applicable in full. Where appropriate, the invalid or destructible provision shall be replaced ipso jure by a provision of comparable scope, legally allowed.