CityHeroes Terms of Service ("Agreement")
This Agreement was last modified on December 03, 2013.
1. Agreement and parties
Please read these Terms of Service ("Agreement", "Terms of Service") carefully before using http://cityhero.es ("the Site") or CityHeroes mobile application ("the app") operated by CityHeroes SRL ("us", "we","CityHeroes", or "our"). This Agreement sets forth the legally binding terms and conditions for your use of the mobile app and the Site at http://cityhero.es.
By accessing or using the app and the Site in any manner, including, but not limited to, visiting or browsing the app and the Site or contributing content or other materials to the app or the Site, you agree to be bound by these Terms of Service. Capitalized terms are defined in this Agreement.
By this Agreement, CityHeroes grants the User the right to use the Service.
2 Definitions
- Service. A service provided by CityHeroes, which supplies User Photos, Reports, Missions and Assignments between the Users with the Service.
- Photo or Report. A photo, report, or a package of several Photos of reports, which can be downloaded via the Service. It is a digital photo or video file, which has been taken by the Hero with a camera phone, camera or similar device designed for taking photos and/or video.
- Hero. The first person having delivered the Photo or the Report to the Service to be supplied to the Buyers. A person who owns the rights (including copyrights) in a Photo or Report and transfers as a free contribution to CityHeroes or offers the Photo for sale or through the Service. The hero may be the seller, the Hero or a person or company having bought the rights from the owner of the Photo.
- Buyer or client. A person, organization, company or authority who, under this Agreement, orders Photos, Reports or gives, Missions or Assignments through the Service.
- User. A person who uses the Service and who may be a Buyer and/or a Hero. A User can also be 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 can only use the Service with the consent of a parent or guardian.
- Mission or assignment. A Photo or report shooting mission, open for all (or selected) heroes, created by the Client through the Service. The Assignments are different and when applicable, the terms of delivery and use for the Assignment in question are defined within the Assignment. The Mission may also be a competition, in which the Heroes are asked to take a Photo/Report 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.
- Marketplace. The place of sale of the Photos and report stories delivered pursuant to the Mission and from which, besides the Buyer any third party may buy rights to a Photo/Report.
- Exclusive rights. If the Photo or report is assigned to someone with “exclusive rights”, no other person shall use, publish, sell or offer to sell the Photo, report or otherwise use the Photo and report for any purpose including commercial purposes or in their own work without the permission of the above mentioned exclusive rights holder.
- All rights. If the Photo and report is assigned to someone with “All rights”, the owner of the “All rights” shall receive unlimited, Exclusive rights to forward, modify, publish and use the Photo/Report in any media, anywhere in the world (thus includes unlimited publishing rights) except the moral rights of the hero, which are inalienable under copyright laws.
- 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 taking, publishing or other use of any Photo or report.
- Price. CityHeroes is free to set the report or photo price of sale. In case of an Mission for which, according to the Mission itself, a separate fee shall be paid for the Photo or report package and for performance of the Mission, the hero shall separately specify the price for the Photo/Report package and for performance of the Mission.
3. Obligation to register and password responsibility
By accessing or using the app and the Site in any manner, including, but not limited to, visiting or browsing the app and the Site or contributing content or other materials to the app or the Site, you agree to be bound by these Terms of Service
The User must also register with the Service.
A person who, because of his/her age, is not authorized to enter into this Agreement or a person who according to the laws of his/her domicile or the country where he/she uses the Service has been by law or otherwise denied the right to receive or use the Service, may not use the Service or register with the Service.
During registration, the User shall choose a personal password. The User shall be responsible for ensuring that no third party has access to the password, and shall be personally responsible for the use of the Service under the password. CityHeroes shall be entitled to change the User's password. CityHeroes shall also have the right to deny the User access to the Service without any reason.
4. CityHeroes as the supplier of the platform, marketplace and the photo-reports missions or Missions.
CityHeroes forwards Missions or Assignments created by the Clients to the heroes through the Service. A service fee from creating a Mission or Assignment to the Service can be charged from the Buyer.
Notices and notifications will be sent to all (or the ones selected by the Buyer) those Heroes who have informed CityHeroes through the Service of their desire to be notified of Missions. Notices of location based Missions will be sent to only those Heroes who have agreed to let CityHeroes use their location information.
Missions may not be contrary to good practice or endanger the Hero. CityHeroes may always, at its discretion, remove a Mission which it considers contrary to good practice or otherwise inappropriate. If a Mission is removed the remuneration for the Mission shall not be returned.
A Hero who takes a Photo or Report an incident in accordance with the Mission shall have the right to offer it electronically through the Service, for the price specified in the Mission, for purchase by the Buyers. Furthermore, the Buyer, having bought all relevant rights in the Photo/Report from the Service, may offer the Photo/Report to other Buyers for purchase using the Service. The Buyer is always free to choose whether to buy the delivered Photo/Report or not.
In providing the Service, CityHeroes is acting only as a facilitator between the Seller, the Hero and the Buyer. The Hero (and any other User) shall be deemed in independent third party contractor, and shall under no circumstances be considered an employee or agent of CityHeroes or the Buyer or their affiliates (regardless of the Mission or the number of Missions). Neither shall any User have the right to conclude any agreements or otherwise act on behalf of CityHeroes or any other Party.
5. CityHeroes’ rights to the reports and photos
The Hero shall provide to the Service all Exclusive rights to the Photo/Report from the moment of the delivery of the Photo or the Report.
After any Exclusive rights period has lapsed, CityHeroes shall have the continuing right to offer Photo/Reports to the Buyers through the Service. After the Exclusive rights period has lapsed a contemporaneous right to use and sell publishing rights in the Photo o report shall remain with the Hero.
CityHeroes’ right to forward the copyrights to the Photo and reports to the Buyers shall take effect immediately after the Hero has delivered the Photo/Report to the Service.
CityHeroes may use all the Photo/Reports delivered to the Service without restrictions in marketing the Service in all media and countries, including after the relevant contractual rights have been forwarded to the Buyer.
Under this Agreement, CityHeroes may copy the Photo/Reports and make them available on the Service in ‘viewing mode’, whereby Users’ access to the Photo/Reports is limited to viewing only.
6. Buyers rights concerning to the reports and photos
CityHeroes shall make available to the Buyer, along with the Photo/Report, the licensing terms / rights mentioned in the Mission for the price in accordance with the rules of the Mission.
Modification of the Photo/Report for editorial purposes shall be permitted. Any other modifications to the Photo shall require the prior permission of the Hero (unless the Buyer has bought All rights). Furthermore, when the usage permitted under this Section requires forwarding the Photo/Report in order to enable the permitted use of the Photo/Report in different distribution channels, the Photo/Report may be forwarded.
The right to publish shall not be geographically restricted i.e. the Photo/Report may be published in any country, but only in Buyers own use i.e the Photo/Report may not be forwarded to any other party (unless the Buyer has purchased all rights).
For the sake of clarity, it should be stated that the Photo/Reports do not need to be removed from the Internet or from any other archive after the termination of the right of use according to the licensing terms, and these terms shall not restrict any archive services provided by the Buyer. However, re-use of the Photo/Report (e.g. in a different article after the termination of the required licensing rights) shall require re-purchasing of the publishing rights, unless the Buyer has purchased a special Publishing license.
Any Hero of any Photo/Report shall retain the right at all times to use the Photo/Report in personal accounts, exhibitions and in retrospective use regardless of the rights assigned to the Buyer.
All the Photo/Reports delivered pursuant to an Mission shall be placed for sale in the Marketplace, and besides the Buyer who created the Mission, other Users may purchase the Photo/Report delivered to the Mission from the Seller with the Publishing License. The Hero, having delivered the Photo/Report pursuant to the Mission, shall have the right, at a minimum, to obtain remuneration in accordance with the Mission for sales concluded in the Marketplace.
7. Publishing license
A Publishing License refers to a license by which CityHeroes supplies a Photo/Report to the Buyer, with the right to use the Photo/Report permanently and also without any restrictions for publishing amounts. The Buyer may publish the Photo/Report in any private or public use (including commercial use) which the Buyer decides to, however obeying all the relevant legislation, this Agreement, and particularly clauses concerning the Release.
This “Publishing License” shall not mean a Buyers Exclusive right to publish the Photo/Report. Other Buyers may also buy the same License. Other copyrights (except the above mentioned Publishing License) shall not be transferred to the Buyer.
8. Transferring copyrights
After the Buyer has delivered his payment for the Photo/Report to CityHeroes, the payment shall be on the Seller´s personal user account on the Service. The Seller may request the payment to be paid to themselves when the balance of his/her personal account exceeds 50 USD. Any sums of less than 50 USD shall, at the request of the Hero, be transferred every month. At the request of the Hero, and if the Hero provides the service fee of 5 USD, CityHeroes may transfer such sums at other times as well. CityHeroes shall transfer the Hero’s share of the payment specified in this Agreement to the Hero within 20 days of the date that the Hero requests such payment from CityHeroes through the Service and has given all the information needed for payment. CityHeroes may hold some fees as a tax according the Heroes country and tax requirements.
The Price specified with the right commission fee discounted shall be transferred on the assumption that the payment made by the Buyer is not subject to dispute, i.e. the Buyer agrees that the Photo/Report has been delivered in accordance with the terms of the Service.
The right to use the Photo/Report under this Agreement shall be transferred to the Buyer when the price of the Photo/Report has been paid in full to CityHeroes’ account according to CityHeroes’ terms of payment. The Photo/Report shall be delivered to the Buyer immediately after the payment is made.
Should the Buyer publish the Photo/Report without purchasing a licensing right for the Photo/Report, a charge of 2000% of the Price specified shall be added to the Price to compensate for unauthorised publishing.
9. Taxation
The remuneration paid to the Hero for the Photo/Report is taxable income in most countries. With regard to taxation, the reward for the winner(s) in the Mission shall be considered in most countries as taxable income or raffle prize, depending on the Mission at issue.
The Hero shall be obliged to comply with the (tax) legislation of their domicile. If the Hero is not liable for tax in Chile, Brazil or Bolivia, the (tax) legislation of his/her domicile shall be applied. The Hero shall be liable for ensuring that all prepayments of tax, value added tax and other payments are duly remitted in accordance with the applicable legislation.
Prices specified by the CityHeroes for the Photo/Reports are exclusive of tax. Taxes may be added to the selling price depending on the Buyer's domicile and possible registration for Taxes. A Buyer outside outside of the countries mentioned above shall be liable for ensuring that all taxes and other payments are duly remitted in accordance with the legislation of their domicile. CityHeroes shall have a right to withhold tax on any payments made to a Hero if such may be necessary to comply with applicable tax legislation.
10. Liability of the Hero
The Hero represents and warrants that he/she owns all rights including copyrights to the Photo/Report as specified in the Copyright Act and/or in other copyright related legislation in the Hero´s country of residence, and that the Hero has the right to transfer the rights specified in this Agreement to CityHeroes and the Buyer.
The Hero is liable for ensuring that he/she has not uploaded to the Service any Photo/Report containing material the possession of which or the publication of which would be illegal in the country where he/she has his/her domicile, or that the use or possession of the Photo/Report by CityHeroes in the Service would be illegal.
The Hero shall be liable for any direct damage caused to other Parties by contractual use of the Photo/Report. In no event shall the Hero be liable for any indirect or incidental damage or loss unless the damage has been caused willfully or gross negligently.
The Hero shall solely be liable for the Photo/Report and any consequences due to publication or presentation of the same in the Service. CityHeroes shall not support any Photo/Report or any opinion, recommendation or advice given in connection with the Photo/Report. CityHeroes shall have no responsibility whatsoever for the Photo/Report or publication of the Photo/Report in the Service. For the sake of clarity, it should be stated that the Hero shall have no responsibility related to use of the Photo/Report (outside the Service) when the publishing rights to the Photo/Report have been purchased through the Service. The Buyer shall be responsible, that use of the Photo/Report complies with all applicable legislation and that publication of the Photo/Report complies with normal journalistic practices and good practices in general.
11. Liability of the buyer
The Buyer shall be liable for any damage caused to other Parties by any use of the Photo/Report that conflicts with applicable legislation or this Agreement.
For the purpose of assigning the publishing rights, the Buyer shall be liable for ensuring that the Photo/Report is not used, without separate agreement, in any other publications of the Buyer or any third party in a way that conflicts with the Agreement.
The Buyer agrees that in using any Photo/Report, it shall comply with all applicable law, and further that a Photo/Report of a person will not be published in a way injurious to his/her personal reputation or privacy or so that it violates any applicable legislation. The Buyer shall ensure (and for the avoidance of doubt shall be liable for any loss in relation to not ensuring), that the use of the Photo/Report complies with all applicable legislation and that publication of the Photo/Report complies with normal journalistic practices and good practices in general. The Buyer acknowledges and agrees that the publication of a Photo/Report may, in some instances, require obtaining a Release (e.g. concerning names, people, works, trademarks or private property), and that the Hero or Hero, as the case may be, has not necessarily acquired such Release. The Buyer is responsible for obtaining all Releases and it agrees that its publication of a Photo/Report is conditional on obtaining all Releases. Should the Buyer have reason to believe that permission or consent for publishing is required under any applicable law the Buyer shall not publish the Photo/Report.
The Buyer may not deactivate the protection (watermark) created by CityHeroes for the Photo/Report nor remove information regarding the rights holder without specific written permission from CityHeroes.
The Buyer agrees to defend, indemnify and hold CityHeroes, Hero and any Hero harmless against any claims or damages resulting from the Buyers failure to comply with the provisions of this Section.
12. Liability of CityHeroes
CityHeroes shall only be liable for direct damage it has caused intentionally or by gross negligence. CityHeroes shall under no circumstances be liable for any indirect, consequential, special or punitive damages or for any injury or damage caused to a third party. CityHeroes’ liability shall be limited to the compensation for the publishing rights of the Photo/Report paid to CityHeroes in accordance with the Price. Payment of such compensation shall be CityHeroes’ sole and exclusive liability under this Agreement. CityHeroes shall return the compensation to the Buyer in case the Service is used contrary to this Agreement. In such cases CityHeroes will block the use of the user account of the Hero of the Photo/Report and CityHeroes will recover the remuneration paid to the Hero.
For the purpose of clarity it should be stated that CityHeroes shall not be liable for damage caused to the User or a third party as a result of the Photo/Report being taken. The User shall be liable for damages relating to the Photo/Report as specified in Sections 10 and 11 of this Agreement.
CityHeroes shall not be liable for the 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, trademarks or other intellectual property, or other third party rights in a Photo/Report, that a third party should have obtained for taking or obtaining the Photo/Report. No representation, warranty or condition, express or implied, statutory or otherwise is given by CityHeroes:
in relation to the use of any names, trademarks or other intellectual property, or other third party rights in a Photo/Report, andas to the existence of any Release, and any all such representations, warranties and conditions are excluded save to the extent prohibited by law.
CityHeroes shall not be liable for the contents and comments of the Photo/Reports 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 Photo/Reports which 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 CityHeroes’ part in relation to the contents of such Photo/Reports.
Each User agrees to indemnify CityHeroes 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 CityHeroes, arising in any manner whatsoever in relation to that User’s unauthorised taking or use of any Photo/Report (including without limitation the failure to obtain a Release), or any other breach by that User of its obligations under this Agreement.
13. Storing users and customers details
CityHeroes shall register the information given by the User through the Service on the CityHeroes customer database. More detailed information about user account data may be found in the internet site of CityHeroes.
This information shall be stored safely and can only be used for CityHeroes’ own legal purposes including advertising.
CityHeroes shall not disclose the information to any third party without the permission of the User. When registering with the Service the Heroes are asked whether or not they want their name and phone number to be shown to the Buyers for possible negotiations concerning the Photo/Report and whether they want to be cited as the source of the Photo/Report.
However, CityHeroes may disclose information relating to the other Party to public authorities or to the other Party if this is justified by an on-going investigation by the authorities or by the legal protection of the Parties. A user has the right of access to the data on him/her in a personal data file. A request to view personal information must be submitted to CityHeroes in writing, with signature, or in person to the person responsible for the register, as listed on www.cityhero.es
14. Prohibition of forwarding and copying
The Buyer may not forward his/her right under this Agreement or the actual Photo/Report to any third party unless CityHeroes and the Buyer agree otherwise. Furthermore, the User may not copy, distribute, send or supply the material available on the Service unless the parties agree otherwise.
15. CityHeroes’ general rights and responsibilities
CityHeroes may make modifications or additions to these terms of delivery and use as the discretion. Any modifications must be made in writing. Modifications made in an electronic format shall be considered to have been made in writing.
CityHeroes shall have the right to terminate the Service described in this Agreement without prior notice. In such a case, the service provider may remove all User information without separate warning.
CityHeroes may transfer or assign this Agreement to any third party without separate prior notice.
CityHeroes shall not be liable for the technical implementation of the Service such as, but not limited to, interruptions and breaks in telecommunication, any problems in data transfer caused by technical faults, maintenance and installation work.
CityHeroes shall not be liable for the destruction, disappearance or alteration of any Photo/Report, or any consequent damages or costs.
16. Duty to cite the source
When a Photo/Report is published, CityHeroes must always be cited as the source. The Hero shall have the right to define on the Service whether they want their name to be published and cited as the source together with CityHeroes.
CityHeroes shall deliver the source information to the Buyer. Should the source not be cited, an additional fee of 1000% of the Price specified shall be added to the Price of publication.
17. Complaints
Any complaints relating to the Photo/Report must be submitted within 3 working days from the date of downloading of the Photo/Report from the CityHeroes digital Photo/Report database.
18. Confidentiality
The Parties (CityHeroes, Hero, 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, it is established that the price/ reward and the Buyer is non-confidential information.
Hero’s name and phone number may also be non-confidential information for the Buyers depending on the information/choices the Hero has given when registering within the Service.
19. Applicable law and dispute resolution
This Agreement shall be governed by the laws of Chile, excluding its conflict of laws principles. Any and all disputes arising out or in connection with this Agreement, which cannot be settled by mutual negotiations, shall be settled by a Chilean instance.
20. Intellectual Property
The Site and its original content, features and functionality are owned by CityHeroes SRL and are protected by international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
21. Termination
We may terminate your access the app or to the Site, without cause or notice, which may result in the forfeiture and destruction of all information associated with you. All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
22. Links To Other Sites
Our Site may contain links to third-party sites that are not owned or controlled by CityHeroes SRL.
CityHeroes SRL has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party sites or services. We strongly advise you to read the terms and conditions and privacy policy of any third-party site that you visit.
23. Governing Law
This Agreement (and any further rules, polices, or guidelines incorporated by reference) shall be governed and construed in accordance with the laws of Santiago, Chile, without giving effect to any principles of conflicts of law.
24. Changes To This Agreement
We reserve the right, at our sole discretion, to modify or replace these Terms of Service by posting the updated terms on the Site. Your continued use of the app and the Site after any such changes constitutes your acceptance of the new Terms of Service.
Please review this Agreement periodically for changes. If you do not agree to any of this Agreement or any changes to this Agreement, do not use, access or continue to access the app or the Site or discontinue any use of the app and the Site immediately.