Photovisi White Label Terms and Conditions
Effective date: 1 August 2015
Amsterdam, The Netherlands
Article 1. Applicability
- These General Terms and Conditions (hereinafter referred to as: "White Label Conditions") apply to any agreement (hereinafter referred to as: the "Subscription") between Photovisi and a natural or legal person (hereinafter referred to as: the "Subscriber") with regard to the supply of software by Photovisi that has no outward characteristics or references to Photovisi and which is designed to be offered by the Subscriber to third parties as if it was the Subscriber's own product (hereinafter referred to as: “White Label Application”). In addition, the Conditions of use related to the use of the Photovisi website, the summary page with the designs (hereinafter referred to as: the "Design Overview") and Applications (including White Label Applications) supplied by Photovisi (collectively called: the “Service”) also apply. In case of a contradiction between the White Label Conditions and the Conditions of use, the White Label Conditions prevail as far as it involves the supply and use of White Label Applications.
- In the event that Photovisi permitted deviations from the White Label Conditions 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 White Label Conditions as yet. The Subscriber cannot derive any rights from the way in which Photovisi apply the White Label Conditions.
- The White Label Conditions are also applicable on all agreements with Photovisi for the execution of which external parties need to be involved. In terms of the Subscriber, these third-parties can appeal directly to the White Label Conditions, including any limitations or exclusions of liability.
- Should one or more provisions of the White Label Conditions 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. The Subscription
- A person must be at least 18 years of age to register as a Subscriber. If the Subscription is entered into for the benefit of a legal person, the person who represents the legal person shall have sufficient authority to bind the legal entity.
- Once the Subscriber has opened a White Label account (hereinafter referred to as: the "Account") at Photovisi, an agreement comes into force between Photovisi and Subscriber on the basis of which Subscriber can make continued use of the White Label Application at a periodic payment, in compliance with these White Label Conditions.
- The Subscriber acknowledges and agrees that Photovisi imposes certain guidelines on using the White Label Application and that these guidelines are established entirely at the discretion of Photovisi. The Subscriber cannot derive any rights from the way in which Photovisi establishes and applies the directives.
- Unless expressly agreed otherwise, a Subscription is entered into for an indefinite period.
Article 3. Use of the White Label Application
- In respect of the White Label Application, the Subscriber only obtains those rights as set out in these White Label Conditions or expressly allocated otherwise to the Subscriber.
- The exploitation of the White Label Application is reserved exclusively to the Subscriber or the company for whom the Subscription was registered. Exploitation of the White Label Application by more than one natural or legal person is not allowed, unless each of these persons has entered into a Subscription involving this exploitation.
- The Subscriber is exclusively entitled to operate the White Label Application in such a way that third parties (hereinafter referred to as: the "Users") can use the White Label Application to create a photo-collage and use it as a digital file or physical product (hereinafter referred to jointly as: the "Product"), for example on the Subscriber's website. The Subscriber is expressly not allowed:
- to offer or use the Application on more than 1 website;
- to deliver or transfer the Application to third parties;
- to reveal the source code of the Application or to provide it to third parties;
- to change or modify the source code;
- to grant rights to third parties pertaining to the Application;
- to exploit the Application for a service that competes with the Photovisi services or that violates the Photovisi property rights;
- to use the Application in a violent, discriminatory, unlawful, infringing, hateful, pornographic manner;
- interfere with or disturb the Photovisi Application or servers or networks connected to the Application, for example by distributing worms, viruses, spyware, malware or other destructive or disruptive code;
- to exploit and/or use the Application in a manner that is contrary to law or regulation or infringe on the rights of third parties.
- The Subscriber shall be allowed to apply logos, brand names, identifiers, corporate styles and other references to the company or the services provided by the Subscriber in the Application, but only in so far as no rights of third parties (including Photovisi) are violated.
- Unless otherwise agreed in writing, the Subscriber is responsible for the installation and implementation of the Application on the Subscriber's systems and/or website and the costs involved.
Article 4. License related to the Content
- Photovisi does not acquire any ownership of the data, text, files, information, user names, photos, pictures, profiles, audio and video clips, sound, music, copyrighted works, applications, links and other content or materials (collectively: the "Content") that the User sends, publishes or displays on or through the White Label Application. Instead, in respect of the Content, the Subscriber grants Photovisi a non-exclusive, fully paid and royalty-free, transferable, worldwide and unlimited license on the use and exploitation (sale) of the Content and the right to issue a sub-license on the Content (for example in White Label Applications), also including the use of the Content for promotional and commercial purposes.
- The Subscriber must ensure that the Users transfer the appropriate (users) rights to the Subscriber in order for the Subscriber to provide a license to Photovisi under this provision and in order to facilitate this in the White Label Conditions. The Subscriber declares and guarantees that: (i) The Subscriber has sufficient rights or is otherwise entitled to grant the rights and licenses listed in these White Label Conditions, (ii) publishing and use of the Content on or through the Service doesn't infringe the rights of third parties , including, but not limited to, privacy rights, publicity rights, copyrights, trademarks and/or other intellectual property rights, (iii) the Subscriber agrees to pay all royalties, fees and other money that may be due because of the Content that the Users publish on or through the Application, and (iv) the Subscriber has the legal right and authority to accept these White Label Conditions in his/her jurisdiction.
Article 5. Payment of Subscription fees
- The Subscription fees are agreed in advance and consist of a periodic payment amount (hereinafter referred to as: the "Subscription fee"). The payment of Subscription fees shall be made in advance, each time per period.
- If it was agreed that the payment of subscription fees will be made through a debit order, the Subscriber authorised Photovisi to do so.
- If payment is made by means of a debit order, the Subscriber shall ensure sufficient funds are available in the specified bank account so that payments can be made.
- In the event of late payment, for instance in the event of a rejection of the debit order or due to an insufficient balance on the specified account, or after the expiry of the agreed term of payment, the Subscriber is legally in default without further notice of default being required.
- As from the moment of default the Subscriber shall be liable to pay interest on the due and payable amount equal to 1% per month, unless the statutory commercial interest is higher in which instance the statutory commercial interest shall apply. As from that moment any and all judicial and extrajudicial costs that Photovisi incurs in order to obtain payment – both in and out of court – shall be at the expense of the Subscriber. In that case the Subscriber shall be liable to pay compensation equal to at least 15% of the outstanding amount with a minimum of € 75.00 (in words: seventy-five euros). Should the costs actually incurred and to be incurred by Photovisi exceed the aforementioned amount then these costs shall equally qualify for compensation.
- In case of liquidation, insolvency, debt management or suspension of payment of the Subscriber, the claims of Photovisi and the obligations of the Subscriber towards Photovisi become immediately due and payable.
- Amounts that have already been paid will not be refunded unless Photovisi is obliged to do so pursuant to a mandatory statutory provision or a court decision.
Article 6. Maintenance, updates and malfunctions
- Although Photovisi intends to make 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 Subscriber is not affected. Photovisi does not require any prior consent of Subscriber.
- 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 Subscriber and without being liable to pay any compensation or any refund.
- Photovisi is not liable for damage that the Subscriber may suffer because of lost revenue due to maintenance work (planned or unplanned), malfunctions and adjustments in or on the Service.
Article 7. Storage and loss of data
- Photovisi advises the Subscriber to make its own (local) back-ups of the White Label Application. the Content and any user data. Photovisi is not a back-up service and the Subscriber agrees that the Subscriber will not exclusively rely on the Application for back-ups or storage of Content.
- Photovisi does not accept responsibility for any modification or suspension or discontinuance of the Service, or for the loss of Content or user data. The Subscriber also acknowledges that the security of internet connections can never be guaranteed fully and that sending Content or other information by internet may therefore not be completely secure.
Article 8. Indemnification
The Subscriber is personally responsible for the way in which the Subscriber exploits the White Label Application and the way in which this is used by Users. The Subscriber indemnifies Photovisi against all claims by third parties involving the exploitation and use by Users of the Subscriber's Application.
Article 9. Access to the Service
- Photovisi reserves the right to change the Service or to suspend the Subscriber's or User's access to the Application without prior notice, at any given time and without any liability to the Subscriber if the Subscriber acts in violation of the stipulations of these White Label Conditions, legislation and regulations or third party rights.
- Photovisi shall be entitled but not required to remove, edit, block and/or monitor Users, Designs, accounts and user names that, in Photovisi's opinion, violate these White Label Conditions, without being liable to pay any compensation to the Subscriber.
- When Photovisi terminates the Subscriber's access to the Application or if the Subscriber deactivates his account, the Application and any other Content and all information and data will no longer be accessible through the account, but the Content, information and data may remain on the Service.
- 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.
- Upon termination, all licenses and other rights granted to the Designer under these White Label Conditions, are terminated immediately.
Article 10. Duration and cancellation
- The Subscriber may cancel the Subscription at any time.
- Cancellation of the Subscription is done within the online system organised by Photovisi.
- If the Subscriber cancels the Subscription, the Subscriber will owe Photovisi the Subscription fee for the current month, including any possible additional compensation due to Photovisi.
- Photovisi may terminate the Subscription with the Subscriber unilaterally at the end of the current month, without any indication of reason and without owing any compensation to the Subscriber. If Photovisi proceeds to cancel the Subscription, Photovisi will inform the Subscriber by e-mail.
- Upon termination of the Subscription, all licenses and other rights granted to the Subscriber under these White Label Conditions, are terminated immediately.
Article 11. Liability
- Unless there is intent or gross negligence, Photovisi's liability for direct damages suffered by the Subscriber 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 Application. Photovisi accepts no liability for damage that the Subscriber suffers because of the manner in which third parties use the Application, including any infringement of the Subscriber's copyrights.
- Photovisi is also specifically not liable for loss of stored data in the Application. The Subscriber 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 Subscriber 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. Changes to the Subscription and the White Label Conditions
- Photovisi is entitled to change the Subscription fees per month. Photovisi shall inform the Subscriber of the intended fee changes at the latest thirty (30) days before the implementation of the intended changes. If the Subscriber objects to the fee changes, the Subscriber shall have the right to terminate the agreement with Photovisi from the date on which the planned fee changes come into force.
- Photovisi is also entitled to change or add to the content of the Subscription and the White Label Conditions unilaterally. Photovisi shall inform the Subscriber of the changes or additions at the latest thirty (30) calendar days before the implementation of the changes, so the Subscriber may be aware of it.
- If the Subscriber objects to the changes or addition to the Subscription or White Label Conditions, the Subscriber shall have the right to terminate the Subscription from the time the changes come into force. Any further use of the Photovisi Service after the effective date shall then apply as acceptance of the changes and/or additions.
Article 13. Other conditions
- Dutch law is applicable on the Subscription and 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 Subscriber.
- In these White Label Conditions, "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 Subscriber is acquired by a third party or if the Subscriber acquires a third party, he/she shall always report this immediately to Photovisi once the Subscriber 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 White Label Conditions are void or voidable, in its entirety or partly, at any time, then the remainder of these White Label Conditions 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.