THESE TERMS OF SERVICE (“AGREEMENT”) ARE ENTERED INTO BY AND BETWEEN SELLFIES B.V. (“COMPANY”) AND YOU (“USER” OR “MODEL”). SELLFIES B.V. IS A DUTCH LIMITED LIABILITY COMPANY WITH ITS REGISTERED ADDRESS VIJZELSTRAAT 68 AMSTERDAM THE NETHERLANDS AND BUSINESS REGISTRATION NUMBER 85414379.
BY USING OUR WEBSITE AS PUBLISHED ON HTTPS//:WWW.SELLFIES.COM AS A USER, YOU AGREE TO BE BOUND BY AND ACKNOWLEDGE YOUR COMPLETE ACCEPTANCE OF ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT WAS LAST UPDATED IN JANUARY, 2022 AND IT IS EFFECTIVE WHEN YOU CLICK “I ACCEPT” BELOW (“EFFECTIVE DATE”).
ARTICLE 1. DEFINITIONS
1.1. “Account” means an account registered by a User within the Platform pursuant to the terms and conditions of this Agreement.
1.2. “Buy” means the right to acquire exclusive rights to the Content from Registered Users on the website, including proprietary rights, pursuant to the terms and conditions of this Agreement. Notwithstanding the foregoing, Registered users reserve the right to use Content for the sole purpose of building their portfolios and self-promoting on their Accounts.
1.3. “Content” means any material uploaded to the Platform by a Registered User, including, without limitation, any photographs, images, videos, audio, and any other material whatsoever. Any Content must be taken by User with a camera, phone or similar device intended to take personal photographs, videos and selfies.
1.4. “Customer(s)” means third-parties who will acquire rights to either become licensee or buyer of the Content that User(s) has created.
1.5. “Documentation” means any online or written documentation related to Users’ use of the Platform that is provided by Company or otherwise made available to Users, including, without limitation, identification and age verification forms, and work instructions.
1.6. “License” means the acquisition by Company of rights to use the Content from Users and does not include the acquisition of any proprietary rights.
1.7. “Login” means the unique combination of username and password designed to provide access for a single individual to the Platform.
1.8. “Model(s)” means a User who transfers any right or license, including property rights in and to the Content and sells such Content to the Platform.
1.9. “Platform” means the website which is established by Company for the purposes of enabling Models to sell Content to Website in accordance with the terms and conditions of this Agreement.
1.10. “Project” means a Content delivery project, open to Models, offered by Company on the Website created by the Model through the Platform.
1.11. “Release” means an image release, property release or any other kind of 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 Content.
1.12. “User(s)” means registered and verified users who use the Platform to upload their Content of Model or upload Content for Customers to Buy or License. For the avoidance of doubt, Users include Customers and Models.
ARTICLE 2. PLATFORM
2.1. Platform Access. Subject to the terms and conditions of this Agreement, Company hereby grants User a personal, worldwide, non-exclusive, non-transferable rights to access and use the Platform during the Term. Notwithstanding the foregoing, Company can at any time refuse User to access and use the Platform in its sole discretion.
2.2. Accounts. Accounts may only be issued to Users who have been properly registered and who are approved by Company to appear on the Website. Accounts with Users who have not properly registered in the Platform or have not submitted all required and proper Identification will be shut down immediately. If a User is no longer using his or her Account or in case of an inactive Account, such Account(s) may be closed at the discretion of the Company. Inactive Accounts may be shut down after a specific amount of time and may not be recovered thereafter. User understands that the accounts are strictly personal, and shall be responsible for ensuring that no third party has access to their account.
2.3. Projects. Company makes Projects available to Models on the Platform where Models can share their pictures, video and other material for a fee. Projects must meet the requirements set forth in Section 2.4. (Acceptable Use of the Platform). Company may, in its sole discretion and for any reason, remove a Project from the Platform. Models who create Content in accordance with the terms and conditions of this Agreement shall have the right to offer such Content through the Platform, for the fee specified in the Project, for Customers to either License or Buy.
2.4. Acceptable Use of the Platform. A User may use the Platform only for lawful purposes and in accordance with the terms and conditions of this Agreement. User agrees not to use the Platform: (i) in any way that violates any applicable federal, state, local, or international law; (ii) for the purpose of exploiting, harming or attempting to exploit or harm, minors and persons under the age of eighteen (18) in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise; (iii) to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Platform, or which, as determined in Company’s sole discretion, may harm Company or other Users of the Platform or expose them to liability; and (iv) use the Platform to store or transmit a virus, trojan horse or malicious code.
2.5. User Responsibilities. User shall: (i) use the Platform in accordance with this Agreement, any Documentation, work instructions and with all applicable laws, rules, regulations (including, without limitation, export, data protection and privacy laws, rules, and regulations); (iii) be responsible for all activities conducted under its Logins to the Platform; and (iii) be solely responsible for the accuracy, quality, reliability, integrity, and legality of Content and of the means by which it acquires, uses and shares such Content.
2.6. Age Verification. The Platform is not designed and intended to be used by minors and persons under the age of eighteen (18). The Platform is also not designed and intended to willfully and knowingly collect, use, or disclose any personal information from minors and persons under the age of eighteen (18). Once Company becomes aware that any personal information from minors and persons under the age of eighteen (18) was submitted or collected through the Platform, Company will immediately remove such personal information. To the extent the User is a Model, such User warrants and represents that: (i) User has reached the age of eighteen (18) or otherwise has reached the age of legal consent in his/her country of residence; and (ii) the government-issued photo identification provided to Company is valid and accurately reflects and represents the fact that User has reached the age of eighteen (18) has reached the age of legal consent in his/her country of residence.
2.7. Platform Use. User further warrants and represents that he or she has all the sufficient rights for usage of the Platform and is bound by any legal obligations sufficient for any liability that can appear as a result of usage of the Platform.
ARTICLE 3. CONTENT RIGHTS
3.1. Exclusive Rights. Models agree that any Content submitted in response to a Project shall be available to license or buy for a period of four working days from the date it has been submitted (the “Exclusive Rights Period”). Company shall within the Exclusive Rights Period notify Model that it will not buy the rights attached to the Content.
3.2. Company License. Models grant Company a worldwide, non-exclusive, royalty-free, transferable license to reproduce, distribute, transmit, broadcast, display and to create derivative works, including AI-renditions (such as deepfake) of the Content in connection with its offering of the Platform, including for promoting the Platform, and/or redistributing the Platform and grants Company all rights, including all rights under copyright to permit a Customer to obtain certain rights in and to the Content in any format.
3.3.Customer Use License. Customer is only granted a Use License, meaning a perpetual right to reproduce, publish, display, transmit, broadcast, modify and create derivative works in the Content for any use in any media throughout the world, provided that such use is in accordance with all applicable laws and the terms and conditions of this Agreement. For the avoidance of doubt, any Use License shall not prevent the Company or Model from granting a similar Use License to anyone else.
3.4. Appearance and Likeness Release. By submitting Content through the Platform, the Model releases Company and Company’s assigns, licensees, and successors from any claims that may arise regarding the use of Model’s image and likeness on the Platform, including, without limitation, any claims of defamation, invasion of privacy, or infringement of moral rights, rights of publicity, trademark or copyright.
3.5. Customer’s Rights to Content. Models shall retain the right at all times to use their Content in personal portfolios and displays regardless of the rights granted to Company and Customers. Such use must remain at all times non-commercial use of the Content.
ARTICLE 4. INTELLECTUAL PROPERTY
4.1. Ownership; Reservation of Rights. Except as expressly set forth in this Agreement, all intellectual property rights in and to the Platform remain the sole property of Company and its licensors. Company owns all content, data, software, inventions, ideas, and other technology and intellectual property that it develops in connection with the Platform. Nothing contained in this Agreement shall be construed as a grant or assignment of any rights in any intellectual property owned by Company, including, without limitation, any of its trademarks or service marks.
4.2. Copyright Policy. The Company respects the intellectual property rights of others and expects Users of the Platform to do the same. The Company will respond to notices of alleged copyright infringement that comply with the law and are properly provided to the Company. If a User believes that his or her Content has been copied in a way that constitutes copyright infringement, such User will provide the Company’s copyright agent with the following information in accordance with the Digital Millennium Copyright Act (DMCA):
- a physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
- identification of the copyrighted work claimed to have been infringed;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the Company to locate the material;
- User’s contact information, including his or her address, telephone number, and email address;
- a statement by User that he or she has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notification is accurate, and, under penalty of perjury, that User is authorized to act on behalf of the copyright owner.
4.3. Feedback. If User provides suggestions, ideas, opinions, input or other feedback to Company, Company shall have an unconditional and unlimited right to use, reproduce, modify, and disclose such feedback without any compensation or attribution. Notwithstanding the foregoing, Company is not required to consider or implement any feedback on the Platform.
ARTICLE 5. PRIVACY
5.1. Privacy Policy. For information about how the Company collects, uses, and shares User information, please review ourPrivacy Policy. User acknowledges that by using the Platform, User consents to the collection, use, and sharing (as set out in the Privacy Policy) of this information, including the transfer of this information to the United States or other countries for storage, processing, and use by the Company. In case of conflicting terms, the Privacy Policy shall always supersede the provisions in this Agreement.
ARTICLE 6. PAYMENTS
6.1. Payment Terms. Once Model’s Content has been approved by Company on the platform baked on the package minimal requirement, it will receive the payments on his/her account. Company shall transfer the Model’s share of the payment specified in this Agreement to the Model within ten days of the date that the Model requests such payment from Company, provided it has given all the information necessary for initiating payment. Company has the right to deduct any third-party payment fees (including credit card fees) from the payment.
6.2. Price. The specified fee shall be transferred on the assumption that the payment initiated by the Company is not subject to dispute, i.e., the Customer agrees that the Content has been delivered in accordance with the terms and conditions.
6.3. Taxes. Fees hereunder are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Model shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Company’s income.
ARTICLE 7. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
7.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
7.2. Model Warranties. Model hereby represents and warrants that:
- Model is responsible for obtaining, at his or her sole expense, all property, space, computers, computer equipment, cameras, Internet access and connectivity, furniture, clothing, materials, etc. used while creating the Content;
- Model is the creator and thereby owns or has obtained all intellectual property rights, interests, and licenses in the Content. Model may not reproduce any copyrighted material, trademarks, service marks, or other proprietary information of third parties without first obtaining prior written consent by the owner of such proprietary rights;
- Model shall abide by all applicable laws when creating Content. Furthermore, Model alone shall be liable for any damages caused to Model or to a third party as a result of the Content. Company shall have no responsibility whatsoever for the Content or publication of the Content in the Platform. Notwithstanding the foregoing, the parties acknowledge and agree that Model shall have no responsibility related to use of the Content (outside the Platform) when the publishing rights to the Content have been purchased by the Customer through the Platform. The Customer shall then be responsible, as set forth in Section 7.3 (Customer Warranties), that use of the Content complies with all applicable laws and follows industry standards; and
- All applicable laws relating to intellectual property rights, privacy protection and defamation in addition to all other applicable legislation is adhered to when Model creates the Content.
7.3. Customer Warranties. Customer hereby represents and warrants that:
- Customer shall be liable for any damage or loss, whether direct or indirect, caused to a third party by any use of the Content that conflicts with applicable law or the terms and conditions of this Agreement;
- Customer shall reasonably ensure that any Content is not used or otherwise published by a third party in conflict with this Agreement or applicable law; and
- Customer shall comply with all applicable law in using any Content and shall not publish the Content so as to defame, injure the personal reputation, or infringe upon the privacy or proprietary rights of a third party.
7.4. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, USER UNDERSTANDS AND AGREES THAT THE PLATFORM, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IS PROVIDED “AS IS” AND COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Company makes reasonable efforts to ensure the Platform is free of viruses or other harmful components but cannot guarantee that the Platform will be free from unknown viruses or harmful components. Company cannot guarantee that the Platform will not incur delays, interruptions, or other errors that are outside of Company’s reasonable control and are inherent with the use of the internet and electronic communications.
7.5. Notice of Explicit Content. THE PLATFORM CONTAINS CONTENT THAT USER MAY FIND OFFENSIVE, INDECENT, OR OBJECTIONABLE, INCLUDING HETEROSEXUAL, BISEXUAL, HOMOSEXUAL, AND TRANSSEXUAL SITUATIONS OF A SEXUAL NATURE. THIS CONTENT MAY OR MAY NOT BE IDENTIFIED AS HAVING ATTRIBUTES THAT USER MAY FIND OFFENSIVE. USER ACKNOWLEDGES THAT HE OR SHE USES THE PLATFORM AT HIS OR HER OWN RISK, AND THE COMPANY HAS NO LIABILITY TO USER FOR ANY CONTENT USER VIEWS. CONTENT CATEGORIES, GENRES, AND DESCRIPTIONS ARE PROVIDED BY USERS, AND THE COMPANY DOES NOT GUARANTEE THEIR ACCURACY.
7.6. Confidentiality and Non-Disclosure. The parties agree not to disclose any confidential information about the other party or in connection with this Agreement, without the relevant party’s prior express written consent. For the avoidance of doubt, Company may disclose the identity of the Customer of any Content, the price associated with a License and the existence of a Release. The Model’s identity may be non-confidential information depending on the Model’s selections when registering for an Account within the Platform (e.g., Model uses his/her personal name in the username created for his or her Account).
7.7. Indemnification by Company. Company shall defend, indemnify and hold User harmless from any damages, attorneys’ fees, finally awarded judgments or settlements arising from any claims, demands, suits or proceedings made or brought by a third party against User, in each case to the extent arising from any allegation that the Platform itself infringes any patent, copyright, or trade secret of a third party. Notwithstanding the foregoing, Company will have no liability for any infringement claim of any kind if the claim results from: (i) modification of the Platform made by User or its agents; (ii) unauthorized or unlicensed use of the Platform; (iii) Content; or (iv) or Company’s creation of designs, templates, or materials pursuant to User’s instructions.
7.8. Indemnification by User. User shall defend, indemnify and hold Company harmless from any damages, attorneys’ fees, finally awarded judgments or settlements arising from any claims, demands, suits or proceedings made or brought by a third party against Company, in each case to the extent arising from or related to: (i) use of the Platform by User in a manner that breaches this Agreement or violates applicable law; (ii) any allegation that Content infringes the intellectual property rights of a third party; (iii) User’s breach of its confidentiality obligations under Section 8 hereof; or (iv) gross negligence or willful misconduct by User.
7.9. Rights Upon Infringement. If Company receives information about an infringement claim related to the Platform, Company shall in its sole discretion: (i) modify the Platform so that it no longer infringes; or (ii) obtain a license for User’s continued use of the Platform in accordance with this Agreement.
7.10. Indemnification Procedure. The party seeking indemnification must: (i) promptly notify the indemnifying party in writing of the applicable claim for which indemnification is sought; provided, that failure to notify shall not relieve a party of its indemnification obligations unless the indemnifying party has been materially prejudiced thereby; (ii) give the indemnifying party sole control of the defense and settlement of the claim (except that the indemnifying party may not settle a claim unless it unconditionally releases the indemnified party of all liability); and (iii) provide the indemnifying party with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such claim.
7.11. Exclusive Remedies. This Section 7 (Indemnification) states Company’s sole and exclusive obligations, and User’s sole and exclusive remedies, with respect to infringement of any intellectual property rights of any kind.
ARTICLE 8. LIMITATION OF LIABILITY
COMPANY’S AGGREGATE CUMULATIVE LIABILITY WITH RESPECT TO ANY INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. IN NO EVENT SHALL COMPANY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE PLATFORM, OR THIS AGREEMENT, EVEN IF THE COMPANY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ARTICLE 9. TERM AND TERMINATION
9.1. Term. Unless sooner terminated in accordance with the terms and conditions of this Agreement, the license and use rights herein granted to Users, shall continue in effect perpetually.
9.2. Mutual Termination. Either party to this Agreement may terminate this relationship with the other party, with not less than forty-eight (48) hours written advance notice, subject to the fulfillment of any outstanding liabilities and/or remaining obligations to the other party.
9.3. Termination by Company. Without limiting any other remedies that Company may have, in the event of a breach of this Agreement, Company reserves the right to suspend User’s Account immediately and/or terminate this Agreement without further notice. In addition, this Agreement may be immediately terminated by Company, at its sole discretion, in the event User is investigated or prosecuted for illegal, unfair, and/or exploitive practices.
9.4. Effect of Termination. In the event that notice of termination is provided by User to Company, any sums due and owing to Model shall be payable within thirty (30) days after Company receives written notice of such termination.
ARTICLE 10. MISCELLANEOUS
10.1. Relationship of Parties. This Agreement does not establish any relationship of partnership, franchise, joint venture, employment, fiduciary, or agency between the parties. Neither party will have the authority to bind the other party or incur obligations on the other’s behalf without the other party’s prior written consent. Model shall create any Content at his or her own cost, expense and liability.
10.2. Notices. All notices under this Agreement shall be in writing and delivered by courier or overnight delivery service, certified mail, or electronic mail and in each instance will be deemed given upon receipt. Notices of termination or of an indemnifiable claim shall be identified as “Legal Notices”. Notices to Company shall be addressed to the attention of its customer support at [email protected] with email subject (in English) “Legal Notice”. All notices to User will be sent to the physical address and/or email addresses set forth in User’s Account.
10.3. Headings and Severability. Headings used in this Agreement are provided for convenience only and will not in any way affect the meaning or interpretation of this Agreement or any portion thereof. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction.
10.4. Waiver and Cumulative Remedies. No waiver by any party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition of this Agreement on any future occasion. All remedies, either under this Agreement or by law or otherwise afforded, will be cumulative and not alternative.
10.5. Assignment. Neither party may assign this Agreement or any of its rights or obligations under this Agreement without the other party’s prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either party may transfer and/or assign this Agreement, without the other party’s consent, to any successor by way of a merger, acquisition, or change of control. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section 11.5 shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.6. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Netherlands without regard to its conflict of laws rules. The state and federal courts located in Amsterdam, the Netherlands shall have exclusive jurisdiction to adjudicate any dispute arising of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts.
10.7. Force Majeure. A party shall not be considered to be in default or breach of this Agreement, and shall be excused from performance or liability for damages, as a result of any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, network failures, acts of civil or military authorities, civil disturbances, wars, terrorism, energy crises, fires, transportation contingencies, interruptions in third party telecommunications or Internet equipment or service, other catastrophes, or any other occurrences which are beyond such party’s reasonable control.
10.8. Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding User’s use of the Platform and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification or amendment of any provision of this Agreement shall be effective unless in writing signed by the parties. This Agreement is binding upon and inures to the benefit of, the parties and their respective permitted successors and assigns.
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EFFECTIVE AS OF FEBRUARY 2022
