Goldfish Social Inc. d/b/a Cohley
1. THIS IS A BINDING AGREEMENT
This agreement (the “Submission Agreement”) governs the terms by which photographers may submit photographs to the Cohley Platform (“we”, “our” or “us”). You acknowledge that this Submission Agreement is a legal agreement between you and us. You must comply with all the terms of this Submission Agreement at all times. If this Submission Agreement is not acceptable to you, you are under no obligation to accept its terms or to make any submissions to us. We may update this Submission Agreement from time to time, and you are responsible for periodically reviewing the most current version. If you continue to make any submission to us after the date of any such update, you will be deemed to have conclusively accepted the updated Submission Agreement.
2. YOUR SUBMISSIONS
Once you have accepted the terms of this Submission Agreement, provided your account has not been suspended or terminated by us, you may submit photographs to us via email at firstname.lastname@example.org or directly to our agents, employees or contractors (each, a “Submission”). Each Submission will be governed by the terms of the then-current version of this Submission Agreement.
3. OWNERSHIP OF SUBMISSIONS
By providing a Submission to us that we accept and compensate you for (“Paid Submission”), you will thereby assign to us and we will own, all right, title and interest in and to that Paid Submission, irrevocably, perpetually and without any limitation or restriction whatsoever. Without limiting the generality of the preceding sentence, upon receipt of each Paid Submission, we will have the exclusive, irrevocable, perpetual, worldwide right to use, reproduce, display, electronically transmit, distribute, publish, broadcast, modify, edit, combine with the work of others, make derivative works from and otherwise exploit each of your Paid Submissions, and to grant any of those rights to others, for any purpose whatsoever, and on any terms determined by us in our sole discretion. You agree that by providing a Paid Submission to us, you will thereby waive all moral rights or any similar rights you may have in relation to that Paid Submission. If we request you to do so, you will sign and deliver to us any and all further assignments and other instruments we may require in order to confirm our ownership of your Paid Submissions. You may also make Submissions that we do not accept and for which we do not compensate you, on our sole prerogative (“Unselected Submissions”). You will own, all right, title and interest in and to the Unselected Submissions, however Unselected Submissions containing an identifiable brand in the image that were shot and submitted specifically for a Cohley Brief, may not re-sold or licensed or used for any commercial purpose whatsoever, nor may you represent that the Unselected Submissions were taken for a Cohley client or for a Cohley Brief, both of which are covered by Section 7, “Confidentiality”. Notwithstanding the foregoing, you will continue to have the right to display your Submissions solely as part of a personal portfolio demonstrating your photographic abilities.
4. REPRESENTATIONS, WARRANTIES, COVENANTS AND INDEMNITIES
You hereby represent, warrant and covenant to us that: (i) each Submission you provide to us will be your own original work, and will not include the work of others or be a copy of someone else’s work, and you will have the full power and authority to provide that Submission to us, to assign ownership of the Submission to us, and to waive all of your moral rights in the Submission; (ii) where identifiable individuals appear in a Submission: (a) each of those individuals will be older than the age of majority in their place of residence at the time the Submission was created and will have agreed to our then-current model agreement, (or in the case of minors, their parent or legal guardian will have agreed to such model agreement); and (b) you will be responsible for any and all payments to that individual, as mutually agreed between you and them. For clarity, in no event will we be responsible for making any payment to any individuals who appear in any of your Submissions; (iii) we will be fully entitled to exercise all of our rights and ownership in each Submission without any obligation to obtain consent from any other party and without any obligation to make any payment or provide any credit to any other party; (iv) no portion of any Submission will be defamatory nor will it violate or infringe upon the copyright, moral rights, trademark rights, privacy rights, personality rights, publicity rights or any other right of any kind of any other party; (v) no Submission will contain any element of gratuitous, explicit or excessive violence, any element which is characterized by the undue exploitation of matters of a sexual nature, or matters of a sexual nature and one or more of the following subjects: crime, horror, cruelty or violence, or any sexual offence under any laws of Canada, the United States or any other applicable jurisdiction, or any matter which is obscene, offensive or in any other way unlawful; (vi) no Submission will contain any disabling mechanism or protection feature or other mechanism designed to prevent or interfere with its use including any clock, timer, counter, computer virus, worm, software lock, drop dead device, Trojan horse routine, trap door, time bomb or any other codes or instructions that may be used to access, modify, replicate, distort, delete, damage or disable our software or computer systems or other software or hardware; and (vii) once you have provided a Submission to us, you will not make it available through any other distributor, website or other marketing, distribution, sale or licensing venue of any kind, and in the event you have previously made that Submission available elsewhere, you will ensure that the Submission is no longer available after you have provided it to us. Without limiting the generality of the foregoing, in no event will you enter into any agreement that conflicts with our rights under this Submission Agreement, and in the event any such conflicting agreement exists, you will ensure such agreement has been terminated and all access to the applicable Submission permanently revoked prior to providing such Submission to us. (viii) you agree not to use any other images taken for a specific Brief that contain an identifiable brand, for any commercial purpose whatsoever, whether or not the images were Paid Submissions or Unselected Submissions. You acknowledge and agree that we will have the right (but no obligation) to reject any Submission or to remove from our Site any previously accepted Submission for any reason whatsoever, including without limitation, for any potential breach of the foregoing representations, warranties and covenants. You agree to defend, indemnify and hold us and our directors, officers, shareholders, employees, agents, contractors, licensees and assignees harmless from and against any and all claims, damages, liabilities, losses, costs and expenses (including legal fees) incurred as a result of: (i) use, reproduction, display, electronic transmission, distribution, publication, broadcast, modification, editing, combination with the work of others, making of derivative works from, or other exploitation of any Submission provided by you; or (ii) any breach or alleged breach of your representations, warranties or covenants made under this Submission Agreement. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of the applicable claim. In the event of any claim subject to the foregoing indemnity, without limiting any of our other rights or remedies, we will be entitled to withhold sums payable under this Submission Agreement in an amount reasonably related to our potential liability and any related costs and legal fees.
5. COMPENSATION / CREDIT
From time-to-time, you may choose to make a Submission for a Brief that includes a fee for images selected for our clients (“Paid Submissions”). A Brief may also specify whether you are entitled to reimbursement of expenses related to the Paid Submissions (“Reimbursable Expenses”). In order to receive payment of Reimbursable Expenses, you must submit receipts to us, in a timely manner. Expense receipts submitted may be rejected and not reimbursed should the number of Paid Submissions not meet our minimum threshold, which we shall determine at our sole discretion. For each calendar month during which you provide Paid Submissions and, or Reimbursable Expenses to us, you will be paid a fee as specified in the corresponding Brief for which the Submission is made, based on the total number of Paid Submissions you provide during that month which are accepted by us, at our sole discretion. Submissions that are not selected will not be entitled to any compensation or credit. All payments will be made to you within 30 calendar days of the end of each calendar month via PayPal or other means determined by us in our sole discretion. You acknowledge that we have not made any representations, warranties or covenants to you regarding the extent to which we will use or exploit any Submission or that we will continue to use or exploit a Submission if we commence to do so. The decision to accept each Submission or to exploit any or all of the rights granted to us for each Submission will be made in our sole discretion, and nothing in this Submission Agreement will obligate us to exploit any of such rights or to continue such exploitation once commenced.
Upon completion of your signup process and acceptance of this Submission Agreement, you will be issued a username and password that will permit you to make Submissions to us. You agree to keep your username and password secret and confidential, and you acknowledge that we will be entitled to rely on any Submission or other communication made using your username and password as conclusive evidence that you made that Submission or communication. You hereby consent to the collection, use and disclosure by us of any personal information you provide to us in connection with the Site and our exercise of any rights with respect to any Submissions you provide to us. You acknowledge that we may make such personal information available to one or more service providers we engage in connection with the operation of the Site and that we and our service providers may store and process such personal information in any jurisdiction located anywhere in the world, as determined in our (or their) sole discretion.
You acknowledge that this Agreement creates a confidential relationship between you and us. That confidential relationship is the basis on which we disclose or may in the future disclose its commercially valuable, proprietary, confidential information or trade secrets pertaining to the services provided for in this Agreement. We may also disclose to you information disclosed to us in confidence by a third party. You shall hold all of our confidential information and trade secrets, the confidential information of third parties, and all Intellectual Property assigned pursuant to Section 6 in strict confidence, and shall neither disclose the same to any third party nor use it for purposes other than providing services under this Agreement, without our prior written consent. This Agreement is also confidential and you shall not, without our express written consent disclose any information relative to or derived from this Agreement, including, specifically, information concerning the intended use of the goods and/or services provided under this Agreement. These secrecy obligations will not apply to information that is or becomes generally available to the public as a matter of record other than as a result of a breach of this Agreement by you. You shall safeguard all materials, whether written or otherwise, which we supply to you and shall not, without our prior written consent, copy, duplicate or share such materials with any third party.
8. DISCLAIMERS / LIMITATIONS OF LIABILITY
OUR SITE IS PROVIDED TO YOU ON AN “AS IS” BASIS WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND. WE, OUR AFFILIATES, LICENSORS, SERVICE PROVIDERS AND SUPPLIERS DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS OF ANY KIND, INCLUDING WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES OR CONDITIONS REGARDING ACCURACY, TECHNICAL AVAILABILITY, TIMELINESS, COMPLETENESS, NON-INFRINGEMENT, SUITABILITY OF CONTENT, MERCHANTABLE QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, OR COURSE OF DEALING. WE, OUR AFFILIATES, LICENSORS, SERVICE PROVIDERS AND SUPPLIERS ASSUME NO RESPONSIBILITY TO YOU OR ANY THIRD PARTY FOR THE CONSEQUENCES OF ANY ERRORS OR OMISSIONS, INCLUDING WITHOUT LIMITATION, ANY ERRORS OR OMISSIONS CONTAINED IN THE FORM OF MODEL AGREEMENT MADE AVAILABLE TO YOU IN CONNECTION WITH YOUR SUBMISSIONS. WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO CORRECT ANY ERRORS OR OMISSIONS IN ANY PORTION OF OUR SITE AND IN OUR FORM OF MODEL AGREEMENT. WE MAY MAKE ANY OTHER CHANGES TO OUR SITE AND OUR FORM OF MODEL AGREEMENT AT ANY TIME WITHOUT NOTICE. WE, OUR AFFILIATES AND OUR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, THOSE ARISING FROM ANY USE OR REMOVAL BY US OF ANY OF YOUR SUBMISSIONS, LOSS OF USE, DATA OR PROFITS, WHETHER RESULTING FROM THE USE OF OR INABILITY TO USE OUR SITE, OR ANY OTHER CAUSE EVEN IF WE OR OUR AFFILIATES OR EITHER OF OUR RESPECTIVE LICENSORS, SERVICE PROVIDERS OR SUPPLIERS HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. OUR TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS SUBMISSION AGREEMENT AND YOUR USE OF THE SITE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE LESSER OF: (I) THE AGGREGATE AMOUNT PAID TO YOU UNDER THIS SUBMISSION AGREEMENT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE FINAL EVENT GIVING RISE TO SUCH LIABILITY; OR (II) $500. THE ABOVE LIMITATIONS AND EXCLUSIONS SHALL APPLY TO YOU TO THE FULLEST EXTENT THAT APPLICABLE LAW PERMITS, IN ALL ACTIONS OF ANY KIND, WHETHER BASED ON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY.
9. TERM AND TERMINATION
Once you have accepted this Submission Agreement, it will become effective and will remain in effect until it has been terminated. You may terminate this Submission Agreement at any time by providing written notice to us via e-mail at email@example.com. Without limiting our other rights and remedies, we may temporarily suspend your access to our Site and your ability to provide Submissions to us, or we may terminate this Submission Agreement at any time, in the event that we believe the security of your account has been compromised or you have breached this Submission Agreement. Any determinations in this regard will be made in our sole discretion, without prior notice to you, provided that will we will provide you with notice of any such suspension or termination after the fact at your next login to our Site. Any suspension or termination of this Agreement, whether by you or us, will not affect our rights with respect to any Submission you provided to us prior to such suspension or termination. In addition, Sections 4, 5, 7, 8, 9, 10, 11, 12 and 14 will survive any termination of this Agreement.
10. SOLE REMEDY
In the event of any breach or alleged breach by us of this Submission Agreement, your sole remedy shall be limited to the right, if any, to recover money damages at law and you shall have no right by reason of any such breach or alleged breach to rescind this Submission Agreement or to any equitable or injunctive relief, or to enjoin or restrain the use, reproduction, display, electronic transmission, distribution, publication, broadcast, modification, editing, combination with the work of others, making of derivative works from, or other exploitation of any Submission provided by you.
11. Non-Competition; Non-Solicitation
During the Term of this Agreement and for a period of twelve (12) months following the last day of your affiliation with Cohley (the “Restricted Period”), you will not, without the prior written consent from Cohley: (i) Either individually, or on behalf of or through any third party, directly or indirectly, solicit, divert or appropriate or attempt to solicit, divert or appropriate any Cohley customer, client, or other business partner (or any person or entity which was a Cohley customer, client, or business partner at any time during the twelve (12) month period preceding such actual or attempted solicitation, diversion or appropriation), or any prospective Cohley customer, client, or business partner with respect to which Cohley has developed or made a sales presentation (or similar offering of services) during the twelve (12) month period preceding such actual or attempted solicitation, for the purpose of competing with Cohley or reducing Cohley’s relationship with any of its customers, clients, or other business partners; or (ii) Either individually or on behalf of or through any third party, directly or indirectly, (A) solicit, entice or persuade or attempt to solicit, entice or persuade any Cohley employee or Cohley consultant to end or reduce such person’s relationship with Cohley, or (B) employ, hire, cause to be employed or engaged, or solicit the employment or the engagement as a consultant of any Cohley employee or Cohley consultant while any such person is affiliated with Cohley, and for the Restricted Period.
We may assign or subcontract this Submission Agreement, in whole or in part, to any person or entity without notice to you, in which case the assignee will be bound by, and we will be released from, our obligations under this Submission Agreement. You may not assign this Submission Agreement without our prior written consent, which consent may be withheld in our sole discretion. This Submission Agreement constitutes the entire agreement between you and us relating to its subject matter and may only be amended in writing between the parties or as otherwise expressly set out in this Submission Agreement. Neither you nor we have made any representations, promises or warranties not set forth in this Submission Agreement. Our failure to insist in any one or more instances upon your performance of any term, covenant or condition of this Agreement shall not be construed as a waiver of its future performance. Your obligations with respect to such term, covenant or condition shall continue unchanged and in full force and effect. No waiver by us of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by us. If any provision of this Agreement is deemed void, illegal or unenforceable for any reason whatsoever, you and we will replace such provision with an enforceable provision that as nearly as possible reflects the economic effect of the unenforceable provision, and the remainder of this Submission Agreement shall remain in full force and effect. You acknowledge that although our Site may be accessed on a global basis, it is controlled and operated by us from our offices within the Province of Ontario, Canada. Accordingly, this Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without reference to any conflicts of laws principles. You and we each hereby irrevocably attorn to the jurisdiction of the courts of the Province of Ontario and the federal courts of Canada. The United Nations Convention on the International Sale of Goods shall not be applicable to this Submission Agreement. The parties to this Submission Agreement have requested that this document, and all related documents, be expressed solely in the English language. Les parties aux présentes ont expressément exigé que le présent contrat, ainsi que tous les documents qui s’y rattachent, soient rédigés en langue anglaise seulement. To the maximum extent permitted by applicable law, in the event any dispute arises under this Submission Agreement or in connection with any of your Submissions or use of our Site, you hereby waive any right you may have to trial by jury, or to commence or participate in any class proceeding or class action against us, our affiliates and our respective directors, officers, shareholders, employees, agents, contractors, licensees or assignees.
13. HOW TO CONTACT US
If you have any questions or concerns about our Site or your Submissions, or if you wish to provide us with any formal notice under this Submission Agreement, you may contact us via e-mail at the following address: firstname.lastname@example.org For clarity, without limiting the generality of Section 12 above, in no event will any information or advice provided by us or our representatives via telephone, e-mail or in person serve as an amendment, supplement or waiver of any portion of this Submission Agreement.
14. INDEPENDENT LEGAL ADVICE
In agreeing to the terms of this Submission Agreement, you acknowledge that: (i) you have had sufficient time to review and consider this Submission Agreement thoroughly; (ii) you have read and understand the terms of this Submission Agreement and your obligations under this Submission Agreement; (iii) you have been given an opportunity to obtain independent legal advice concerning the interpretation and effect of this Submission Agreement; and (iv) you have entered into this Submission Agreement voluntarily and without any pressure as an inducement to us to provide a means for you to economically exploit your photographs.