TravelTelly Phoneographers App
App means the TravelTelly Phoneographers’s smartphone application for uploading and trading photo’s and video’s to TravelTelly including the Marketplace
Buyer means a User who uses the App to purchase photos and videos
Content means photos, videos and related information published on the App.
Marketplace is the TravelTelly Phoneographers marketplace on the App in which Users can publish photos and videos and offer such photos and videos for sale to other Users.
Seller means a User who uses the App to buy photos and videos
Article 1 KEY ELEMENTS OF THE APP
1.1.Good quality is the first key element of the App. TravelTelly reserves the right to review and if necessary remove Content at any time in case TravelTelly finds that any Content that, at TravelTelly’s sole discretion, (i) does not fulfill the quality requirements and standards set from time to time by TravelTelly, (ii) does not add to the existing content of the App or (iii) Content that does not sell or is considered slow-selling Content.
1.3.Full consent of participating individuals is the third key element of the App. The Seller guarantees by uploading the Content to the App that the Seller has obtained all required consents in writing from any and all individuals participating in Content (“Model Releases”). Upon first request from TravelTelly, the Seller shall provide such Model Releases. The Seller indemnifies the Buyer for any and all claims from individuals portrayed on Content uploaded by the Seller.
1.4.The User is solely responsible for the all Content that the User submits, process, handles, sells or buys on the App. Any screening done by TravelTelly does not limit the User’s responsibility for the (use of the) Content. TravelTelly is not responsible for the Content of the Users of the App.
Article 2 FURTHER ELEMENTS OF THE APP
2.1.The App consist of software, services and information as described by TravelTelly in the App, and as may be changed and/or adjusted by TravelTelly from time to time. TravelTelly undertakes to give the Users access to the App and shall take reasonable steps to provide 24/7 access. The User requires access to a working internet connection and an up-to-date mobile phone to be able to use the App.
2.2.TravelTelly reserves the right to, at its own discretion, take measures which may affect the accessibility of the App. This may be due to technical-, organizational-, operational-, maintenance- or security reasons. TravelTelly is not liable for any damage or inconvenience caused by these measures.
2.4.TravelTelly is not liable for problems that occur during the transfer via the internet. Furthermore, Users agree that opening Content is at User’s own risk and liability. TravelTelly does not protect against (all) viruses or other harmful code and does not warrant that the App is free from defects. Users guarantee that any and all Content that is uploaded is free of viruses and/or harmful codes. The User is liable for any and all damages, including but not limited to third party claims, due viruses and/or harmful codes in their uploaded Content.
Article 3 USER REGISTRATION OBLIGATIONS
3.1.The User may register by submitting name, email and additional requested information in the online available registration form and shall adjust this data from time to time if needed to ensure the registrated information is up-to-date. A User that qualifies as a legal entity shall include the details of a contact person in the registration form. For the avoidance of doubt, if the User submits inaccurate, incomplete, outdated or false data, TravelTelly is entitled to remove the User data and prohibit the User from further use of the App. The User is liable for any and all damages, including but not limited to third party claims, due to inaccurate, incomplete, outdated or false data.
3.2.The Seller is furthermore required to submit payment details regarding the account to which payments shall be received, while the Buyer is required to submit payment details regarding the account from which payments shall be made. In addition, to be able to use the App, the Seller and Buyer must register with one or more of the payment service providers supported by the App.
Article 4 TRAVELTELLY LICENSE
4.1.Each User that uploads Content to the App grants TravelTelly a worldwide, non-exclusive, royalty-free, transferable, perpetual license (including a right to sublicense) to use, reproduce, distribute, display the Content for the purposes of the App. This license includes the right to use certain Content to promote the App in any available media channel as well as promotion through search engines. Removal of Content does not affect the aforementioned license.
4.2.The User agrees that Content uploaded on the App may be published for sale on the App at the terms and prices that TravelTelly applies. TravelTelly explicitly reserves the right to set the Content Fee (as defined below), at its own discretion. This includes adjustments in case of temporary promotions covering all or some of the Content and adjustment for the purpose of creating bundles, compilations and portfolios of Content.
Article 5 DAMAGED OR CORRUPT CONTENT
5.1.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 TravelTelly thereof, through contacting TravelTelly’s support (through the address stated on www.traveltelly.com), and present evidence of the damaged/corrupt Content. Provided that TravelTelly can confirm that the Content delivered is damaged/corrupt, TravelTelly shall provide the Buyer with a new, functioning version of the Content within twenty-four (24) hours from TravelTelly’s receipt of the claim.
5.2.If TravelTelly is not able to provide such a new, functioning version of the Content within the above time period, TravelTelly shall reverse the transaction and refund the Content Fee paid by the Buyer.
Article 6 LIMITATION OF LIABILITY FOR TRAVELTELLY TRANSACTIONS
6.1.The Seller and the Buyer recognize that TravelTelly is not an auctioneer, but merely the provider of the App as a transaction platform enabling Sellers and Buyers to sell/buy Content Licenses.
6.2.Thus, TravelTelly 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 the App.
Article 7 PUBLISHING AND SELLING OF CONTENT OWNED AND PRODUCED BY TRAVELTELLY
7.1.TravelTelly publishes and sells photos and videos of its own production on www.traveltelly.com. This content consists of content produced and submitted by TravelTelly. TravelTelly is entitled to place its own produced content higher in the website’s search results.
7.4.TravelTelly 's liability is further limited as set out in […] below.
Article 8 USE OF THE APP
8.2.User support for TravelTelly is provided through guidelines, FAQ and other support documents available from time to time on TravelTelly’s web site www.traveltelly.com. TravelTelly does not warrant the availability of any User support for any specific question or support matter.
8.3.If claims are made against TravelTelly or an action is brought against TravelTelly due to the User's use of the App, the User undertakes to indemnify TravelTelly for any harm, loss or damage that is inflicted upon TravelTelly 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 TravelTelly of the claims or of the fact that actions have been brought against TravelTelly.
Article 9 LIMITATION OF LIABILITY
9.1.TravelTelly 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 TravelTelly or the User's use of the App. TravelTelly 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 the App, or for any misuse of Content published on the App.
9.2.TravelTelly’s liability shall be limited to the above stated except in case of gross negligence or intent. TravelTelly 's liability 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 EUR 100. Claims in excess of this sum cannot be made against TravelTelly by a User. This limitation shall apply even if other warranties or remedies under this User Agreement fail to fulfill their purposes.
Article 10 MISCELLANEOUS
10.1.The User shall not be entitled to transfer its rights or obligations without TravelTelly 's written consent. TravelTelly is entitled to transfer its rights and obligations in its entirety. TravelTelly is entitled to employ subcontractors to perform its obligations pursuant to this User Agreement.
10.2.This terms and conditions shall be governed by and construed in accordance with the laws of The Netherlands. Disputes arising out of or in connection with the use of the App shall be settled by the courts of law of The Netherlands, with the district court of Amsterdam as the court of first instance.
10.3.Notices to the User will be sent through the User's account on the App or to the e-mail address submitted by the User in the registration data. Notices from the User to TravelTelly may be sent via the headline "Contact" on TravelTelly 's web site www.traveltelly.com. Notices shall be deemed to have been received by TravelTelly when TravelTelly confirms receipt by a personal reference (not by auto reply).
APPLICABLE TERMS AND CONDITIONS BETWEEN SELLER AND BUYER
1.The Buyer agrees to pay the price listed on the App for the Content License that it wishes to purchase. The Content Fee is based on:
a. one-time license fee for the use of the Content in accordance with these terms and conditions (the License Fee);
b. transaction fee for the use of the App.
2.Upon receiving the License Fee, 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 and excluding the right to resell or sub-license the (substantially) unmodified Content (the "Content License").
3.The Buyer indemnifies the Seller for damage due to any of the following Prohibited Uses:
a.any use in breach of applicable law (such as incitement to racial hatred, child pornography, slander, insult, instigation of rebellion, unlawful description of violence),
b.any use that may be conceived as threatening, insulting, racist, offensive, vulgar and/or indecent or which involves infringement of a private individual's personal sphere, including without limitation, use of Content for pornographic or other sexual purposes, or any use that TravelTelly considers, in its own discretion, harmful to TravelTelly’s brand and/or good reputation;
c.any use that constitutes infringement of a third party trademark or copyright or other intellectual property right or constitutes violation of relevant personal data protection regulations, and/or
d.for Content marked as "Editorial" or marketed under the Editorial section of TravelTelly any commercial, promotional, advertising or merchandising use.
4.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.
5.The Seller is responsible for compliance with the key elements of the App. 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 TravelTelly will not collect property releases and shall not be responsible for obtaining any such consent, unless otherwise expressly agreed in writing between TravelTelly and a Buyer.
6.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 and videographer or copyright holder of the Content. The Buyer shall be free to use the Content in accordance with the Content License without mentioning the Seller, but 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.
7.The Seller represents and warrants to the Buyer and to TravelTelly that the Seller is the original photographer or videographer 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 TravelTelly that the Content does not infringe upon any copyright, moral right or other intellectual property right.
8.Where the Content is listed as "Editorial" or marked under the Editorial section of TravelTelly, the Seller further represents and warrants to the Buyer and to TravelTelly that the Content has not been manipulated, modified or processed in any way that might affect the integrity of the Content.
9.Other than expressly provided in this User Agreement, the Content is provided ‘as is’ without representation, warranty or condition of any kind, either express or implied. The Seller does not represent or warrant that the Content will meet any requirements of the Buyer, unless specifically agreed by the Seller and the Buyer.
10.The Content Fee shall be paid by the Buyer through the purchase process on TravelTelly and the payment solution(s) made available thereon by TravelTelly. In relation thereto, TravelTelly 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.
11.Upon TravelTelly's receipt of the Content Fee, the Content will be released to the Buyer for use in accordance with the Content License.
12.License Fees will be accumulated on each Seller's user account on the App. The Seller may request TravelTelly to release the License Fees received by TravelTelly 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 TravelTelly 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. TravelTelly retains the right to provide other solutions for "Cash Out" which in such event will be described on TravelTelly's web site www.traveltelly.com and/or in the TravelTelly App.
13.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 TravelTelly to release accumulated License Fees, such License Fees will be forfeited by the Seller and will accrue to TravelTelly.
14.TravelTelly retains the right to adjust payments made to the Seller and to reclaim any amount which incorrectly has been paid out to Seller.
15.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.
16.In the event of such claim or dispute, TravelTelly 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 TravelTelly so decides. Apart from any such release of registration data, TravelTelly 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 TravelTelly in relation thereto.