Assignment
A Photo shooting assignment, open to all (or selected) Users, created by the Buyer through the Service. The terms of delivery and use of any Photo submitted in response to an Assignment are defined within the Assignment. The Assignment may also be a competition, in which the Sellers are asked to take a Photo of a certain event. The Buyer will decide the winner(s) of said competition and the winner(s) will receive a reward predefined by the Buyer.
Buyer
A User who, under this Agreement, acquires rights to either license or Purchase the Photos by placing their orders through official web site or by creating Assignments or after.
Company Means Digital Belly Services India LLP and its subsidiary including its product SNAPCAPE Mobile App and SNAPCAPE Web site.
License
A license is the acquisition by the Buyer of limited rights to use the Photo from the Seller and does not include the acquisition of copyright.
Marketplace
The platform whereby SNAPCAPE makes Photos available to Users for License or Purchase.
Photo
A photo, or a package of several photos, which can be downloaded via the Service. It is a digital photograph or video file, which has been taken by the Seller with a camera phone, camera or similar device designed for taking photos and/or video.
Price
The price of the License or Purchase of the Photo as specified by the Users. The Seller agrees to the price by delivering the Photo to the Assignment. The Buyer agrees to the price by Licensing or Purchasing the Photo.
Purchase
The right to acquire exclusive rights to the Photo from the Seller, including copyright, except the Seller reserves the non-exclusive right to use the Photo for portfolio and self-promotion purposes solely.
Release
Means a model release, property release, or any other release in respect of a third party right (including without limitation any permission or consent relating to names, people, works, trademarks and private property) which is required under any applicable law for the publishing or other use of any Photo.
Seller
A User, who owns the rights (including copyrights) in a Photo and offers the Photo for License or Purchase through the Service. The Seller may be the original creator of the Photo or a person or company who has bought the rights to the Photo.
Service
A service provided by SNAPCAPE, which provides a Marketplace that supplies Photos and Assignments between the Users of the Service.
User
A person who uses the Service by using SNAPCAPE App by downloading the app on their mobile or by using the same through any other's mobile. A User can be either a private person of at least 18 years of age or a legal entity (e.g. company, association etc.). Private persons below 18 years of age must register for the Service with a parent or guardian.
2. Liability of Company
THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE" BASIS AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. COMPANY AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, DISTRIBUTORS AND PARTNERS DO NOT WARRANT THAT:
IN NO EVENT SHALL COMPANY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, DISTRIBUTORS OR SUPPLIERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICE (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) ONE-THOUSAND RUPEES.
2.1 For the purpose of clarity it is clearly stated that company shall not be liable for damage caused to the User or to any third party as a result of the use of the contents of the company.
2.2 Company shall not be liable for obtaining or confirming the existence of any Release, and cannot be aware of existence of any Release or be responsible for any Release, in relation to the use of any names, likeness, trademarks or other intellectual property, or other third party rights in a Photo, that a third party should have obtained for taking or obtaining the Photo.
2.3 No representation, warranty or condition, express or implied, statutory or otherwise is given by Company of any kind:
(i) in relation to the use of any names, trademarks or other intellectual property, or other third party rights in a Photo, and
(ii) as to the existence of any Release,
and any all such representations, warranties and conditions are excluded save to the extent prohibited by law.
2.4 Company shall not be liable for the contents of the Photos to be downloaded from the Service. By accepting these terms the User understands and is aware of the fact that he/she may have to deal with Photos that contain incorrect, offensive or immoral information. By accepting these terms the User waives all and any reasonable rights or legal remedies to claim any responsibility on companies part in relation to the contents of such Photos.
2.5 Each User agrees to indemnify company, its affiliates, and their respective officers, directors, members, employees and agents, on an after-tax basis in relation to any claims, costs (including properly incurred legal costs and other advisers' fees), damages, expenses, liabilities and losses, incurred by Company, arising in any manner whatsoever in relation to that User's unauthorized taking or use of any Photo (including without limitation the failure to obtain a Release), or any other breach by that User of its obligations under this Agreement.
3. Force Majeure
3.1 A force majeure is an unusual and effective event that prevents the Parties from fulfilling their duties under the Agreement, that is beyond the control of the Parties and the hindering effect of which cannot be removed without unreasonable additional costs or loss of time. Such an event may be war; revolt; civil unrest; requisition or confiscation for public needs by an authority; import or export ban; natural disaster; suspension of public transport or energy distribution; labour dispute or fire or other unusual obstruction that is significant in terms of its effects and remains beyond the control of the Parties.
3.2 Each Party may cancel the agreement entirely or in part if the duties under the agreement cannot be fulfilled within a reasonable time frame due to a continuing force majeure.
4. Confidentiality
4.1 The Parties (Company, Seller, and Buyer) agree not to disclose any information about the other party or in connection with this Agreement, without the relevant party's permission. For the purpose of clarity, company may disclose the identity of the Buyer of any Photo, and the Price associated with the license and the availability of a Release.
4.2 Seller's name and phone number may also be non-confidential information to the Buyers, depending on the information/choices the Seller has given when registering within the Service.
5. Applicable law and dispute resolution
This agreement and the parties' actions under this Agreement shall be governed by and construed under the laws of INDIA. Any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement shall be resolved by binding arbitration before a single arbitrator as per Arbitration Law of India and its seat will be at Gurgaon, except as provided herein. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Service.
ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND COMPANYSHOT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
ALL LITIGATION WILL BE GOVERNED AS PER PREVALENT INDIAN LAW AND WILL BE SUBJECT TO JURISDICTION OF INDIAN COURT, GENERALLY AT GURGAON, HARYANA.
6. Order of priority
In case there is a contradiction between different language versions its terms of use and delivery, the English version will take precedence.
© 2015 All Rights Reserved.
Note: This is a final copy of the proposed draft of agreement as was instructed to be prepared and the same is checked for any possible errors or omissions including typographical errors if any and a sincere effort is made to remove them. However, if case any such errors/omissions or corrections are left out, the in such case, appointed drafter assumes no responsibility of the same and all losses/gains arising because of such errors/omissions will be solely on the head of the promoters/founder members of the company i.e. Digital Belly Services India LLP. If the same is uploaded on the website for use, then in such case, it will be assumed that the same is posted only after reading, checking its contents and only after getting convinced about the usefulness and completeness of the contents to the fullest possible extent the same is used by the promoters on their website. It is strongly advices to go through its contents and to ensure about it correctness before using the same.