These terms and conditions (Conditions) set out the terms and conditions which apply to any videos, photographs, still-video images, audio and/or audio-visual material, and/or other text, graphics and content (Content) that you, the user (User), may submit to the Company, via a Third Party Operator Site, through the submission form on the Third Party Operator Site (the Form) (Submit, and references to Submitting and Submitted shall be construed accordingly).
References in these Conditions to Company are to us, Savor The Journey, LLC (ourpooches.com).
Please read these Conditions carefully. Users who do not agree with these Conditions should not Submit Content to the Company using the Form.
By Submitting Content to the Company, and the User confirming that they agree to these Conditions when submitting the Form, the User confirms that the Content they Submit complies with these Conditions and that they agree to be bound by and enter into an Agreement with the Company on the terms set out under these Conditions. The User is solely responsible for any Content that they Submit to the Company by way of the Form.
The Agreement shall be effective from the date on which the User Submits the Content by way of the Form (hereinafter referred to as the Effective Date).
1.1.Â Â Â Â Â The following definitions shall have the following meanings in these Conditions:
Agreement: means the agreement entered into between the Company and the User in accordance with these Conditions.
Content Requirements: the content requirements with which all Content must comply, as set out in paragraph 2;
Data Protection Legislation: means all applicable privacy and data protection laws and regulations as amended, replaced or updated from time-to-time in the state of Hawaii relating to the processing of Personal Data and the privacy of electronic communications, including (i) the GDPR, any national implementing laws, regulations and secondary legislation in the United States of America.
Derivative Works: means work generated or developed by the Company, based on or incorporating the Content (including translations of the Content or any part thereof, adaptations of the Content for the purposes of creating compilations of content or combining the Content with other content, the incorporation of sub-titles, captions, or other material or content within the Content, or any other adaptation, edit, abridgment or condensation of any part of the Content for the Permitted Use.
GDPR: means General Data Protection Regulation ((EU) 2016/679) as amended or updated from time-to-time;
Group: means all subsidiaries or holding companies of the Company from time to time and all associated companies and/or brands, including those written in trust, including but not limited to Savor The Journey, LLC, OurPooches.com and any other companies or brands owned by or associated with the Company that are created from time to time, whether now known or yet to be incorporated or created.
Intellectual Property Rights: means patents, copyright and related rights, rights in software, trademarks, service marks, trade, business and domain names, rights in goodwill or to sue for passing off, unfair competition rights, rights in design, database rights,Â rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;
Moral Rights: means the right of integrity, the right of paternity and all other rights of the creator of copyright works, customarily referred to as moral rights, throughout the world;
Permitted Use: means the right to copy, use, modify, reproduce, distribute, publicly perform, display, license and monetize any Content or any part thereof (as applicable), whether on its own or in combination with other content, for:
(a)Â Â Â Â Â Â editorial use, including, but not limited to:
(i)Â Â Â Â Â in any publication, magazine, newspaper, article, blog or vlog, or news website, in each case in any format and on any media whether now known or in the future developed, including in print and online (whether on or via any website, app or other platform or technology, whether now known or in the future developed, owned and/or operated by the Company, or any member of its Group or any third party, including by way of example only and without limitation any social media site or Video on Demand platform);
(ii)Â Â Â Â in any video, recording, program, motion picture, film, or other audio or audio visual content, including in or as part of a comedy or satire program, clip compilation or show, however broadcast, transmitted, played, displayed or distributed, in any format and on any media whether now known or in the future developed (including but not limited to online (whether on or via any website, app or other platform or technology, owned and/or operated by the Company, or any member of its Group or any third party, whether now known or in the future developed, including by way of example only and without limitation any social media site or Video on Demand platform) or on television in all forms and via any media, whether now known or in the future developed, including but not limited to cable, satellite, online and TV on Demand, or radio); or
(iii)Â Â Â any other editorial use,
(together the Editorial Use);
(b)Â Â Â Â commercial use, including, but not limited to, advertising or promotional or other commercial purposes in respect of which the Company is paid a fee or royalty for the Content, including the monetisation of the Content, in any media or format, whether now known or hereafter developed, and by any means or methods, including by way of example only and without limitation:
(i) Â Â Â in any film, video, motion picture, cartoon, program, recording, or other audio or audio visual content, including in or as part of any comedy or satire program, compilation or show, however broadcast, transmitted, played, displayed or distributed in any format and on any media whether now known or in the future developed (including but not limited to online (whether on or via any website, app or platform owned and/or operated by the Company, or any member of its Group or any third party, including without limitation any social media site or Video On Demand platform) and on television in all forms and via any media, whether now known or in the future developed, including but not limited to cable, satellite, online and TV on Demand, or radio);
(ii)Â Â Â Â in or as part of any musical arrangement or sound recording;
(iii)Â Â Â on or via any website, or any other site, app or platform, owned and/or operated by the Company, or any member of its Group or any third party, whether now known or in the future developed, including without limitation any social media site or Video On Demand platform, or otherwise online, or any other media whether now known or hereafter developed;
(iv)Â Â Â Â making any of the Content available in digital media, print, on electronic equipment, mobile phones and mobile devices, computers, CD-ROM, DVD, apps, digital optical disk data storage and any other media, whether now known or hereafter developed, or via the internet;
(v)Â Â Â Â Â use of the Content within advertising campaigns on behalf of any third party, including in conjunction with or alongside any third party brand, in any format and on any media (including but not limited to in TV commercials, print advertisements and social media advertising campaigns);
(vi)Â Â Â inclusion of the images in or on any catalogue, internet site or marketing materials;
(vii)Â Â Â on, or in connection with, any form of merchandising, including the right to produce, manufacture, supply, license, market, exploit, advertise and sell any products or articles of any description whatsoever displaying or featuring the Content or any part thereof, including by way of example only and without limitation, use of the Content or any part thereof (including still video images) on or in connection with prints, posters, greetings cards, mugs, keyrings, stationery, clothing, apparel or any other physical products, articles or merchandise; and
(viii) Â Â any other commercial use in respect of which the Company or any member of its Group is paid a fee or royalty for the Content, in each case in any media or format, whether now known or hereafter developed, and by any means or methods, whether of the Company, of any member of its Group, or a third party;
(c) Â the right to edit, modify and/or make changes to the Content, including without limitation to create Derivative Works, incorporate advertisements or other material or content within the Content, or adapt any part of the Content for all or any of the Editorial Use purposes and/or commercial purposes described in paragraph (b) above and the right to use, reproduce, publicly perform, promote, display, distribute, license, monetize, sell and commercialize such Derivative Works or adaptations of the Content, for all or any of the Editorial Use purposes and/or commercial purposes described in paragraph (b) above;
Personal Data: means any information which relates to an identified or identifiable natural person from which it is possible to identify that person directly, as further defined in the Data Protection Legislation. Examples include, but shall not be limited to, imagery of an individual, names, usernames, email addresses, telephone numbers, identification numbers, location imagery or data, IP addresses or cookie identifiers.
Territory: worldwide, unless otherwise agreed between the Company and the User.
Third Party Operator: Our Pooches
Third Party Operator Sites:
Facebook:Â Â Â Â Â Â https://www.facebook.com/doggiestylebook
Pinterest:Â Â Â Â Â Â Â Â https://www.pinterest.com/ourpooches/
1.2Â Â Â Â Â The words and phrases other, including and in particular shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible.
- Content Requirements
2.1.Â Â Â Â Â All Content Submitted to the Company using the Form must comply with the following conditions:
(a) Â Â Â Â Content must be of good quality.
(b)Â Â Â Content must not feature identifiable persons or minors, unless the User has the express written consent of the relevant individual(s) or of that minorâ€™s parent or legal guardian in accordance with paragraph 3.1(b) of these Conditions.
(c)Â Â Â Â Content must not contain any material which infringes the copyright or any other Intellectual Property Rights of a third party.
(d)Â Â Â Â The User must only Submit Content that has been taken or created by the User. The User must not Submit Content which:
(i). Â Â Â is embedded with watermark or copyright notices; or
(ii). Â Â has been created by a third party or has been taken from any physical or online source, unless the User has obtained the relevant third partyâ€™s prior written consent in accordance with paragraph 3.1(b) of these Conditions and paid all royalties due to such third party in respect of the use of their work.
2.2.Â Â Â Â Â Content must not contain imagery or audio content which:
(a) Â Â Â is sexually explicit or suggestive, violent, profane or pornographic, contains nudity, or promotes the excessive or irresponsible consumption of alcohol;
(b)Â Â promotes illegal use of alcohol, drugs, tobacco, firearms/weapons (or the use of any of the foregoing);
(c) Â Â Â any activities that may appear unsafe or dangerous or any particular political agenda or message;
(d) Â Â Â is obscene or offensive, derogatory of any ethnic, racial, gender, religious, professional or age group, endorses any form of hate or hate group or contains any other material that is threatening, hateful, discriminatory or that could encourage the commission of a criminal offence;
(e) Â Â Â Â is defamatory or libellous;
(f) Â Â Â Â Â contains any trademarks, logos or trade dress owned by third parties, or advertises or promotes any brand or product of any third party, without permission;
(g) Â Â Â Â contains any personal identification, such as license plate numbers, personal names, email addresses or street addresses;
(h)Â Â Â contains software viruses or files designed to damage or disrupt the good working order of any computer or telecommunications equipment;
(i)Â Â Â Â contains any material which infringes the copyright or other Intellectual Property Rights, or other proprietary rights or privacy rights of a third party or which breaches the confidentiality of a third party; or
(j)Â Â Â contains any other material which is considered to be inappropriate,
paragraphs 2.2(a) to 2.2(h) inclusive shall together be referred to as Inappropriate Content.
2.3.Â Â Â Â Â The Company will fully cooperate with any law enforcement authorities or court order requesting or directing the Company to disclose the identity of or to locate anyone posting any Inappropriate Content or other similar material onto the Site.
3.1.Â Â Â Â Â The User must not include within any Content submitted to the Company using the Form:
(a)Â Â any material which is owned by, or has been created by, a third party, including by way of example only but not limited to, any Content containing a cover (i.e. a new version of someone elseâ€™s song) or any material comprising any pre-existing recorded content (such as clips from other films or programmes, music or samples from other records, photographs or graphics), or other content or material which has been taken from another physical or online source, without the prior written consent of the relevant owners of such material and paying all royalties or other payments due in respect of such use. The Company will not be liable for any such royalties or payments and will be entitled to recover them from the User if any subsequently prove to be payable; or
(b) Â Â Â any Content which features any identifiable person or minor, unless the User has the express written consent of the relevant individual(s) or of the minorâ€™s parent or legal guardian, such consent to include confirmation that no royalties or other payments are due in respect of the use of such Content.
3.2.Â Â Â Â Â Upon Submitting Content by way of the Form which incorporates any third party material or features any identifiable person or minor, the User must provide details to the Company of the third party material contained, or identifiable person or minor featured, within the Content and provide promptly upon request from the Company written evidence of the consent or permission obtained from the relevant owner, person or guardian.
- Data Protection
4.3Â Â Â Â Â Should the User become aware that any Third Party featured in Content they have submitted to the Company wishes to withdraw their consent for the Company to process or use their Personal Data the User must immediately notify the Company in writing using the subject â€˜Consent to Process Personal Data Withdrawnâ€™.
- Warranties and representations
5.1.Â Â Â Â Â The User warrants and agrees that:
(a)Â Â Â all content is original and that it has not been copied wholly or substantially or partially from a third party;
(b)Â Â Â the User personally created and produced the Content or, where the User is a company, its employees created and produced such Content;
(c)Â Â Â the User owns all Intellectual Property Rights in such Content, or the User has the necessary licenses, rights and consents in writing from the owners of such Content (and where the User is a company, the User has the authority) to grant to the Company the license granted under paragraph 5 of these Conditions and the User will provide to the Company written evidence of all such licenses, rights, consents and permissions promptly upon request from the Company;
(e)Â Â Â The Content has not been copied wholly or substantially from a third party and the use of the Content by the Company in accordance with the license granted under paragraph 6 of these Conditions will not infringe on any Intellectual Property Rights or Moral Rights of any third party;
(f)Â Â Â The Content is not defamatory and the use of the Content by the Company in accordance with the license granted under paragraph 6 of these Conditions will not infringe upon any publicity or personality rights of any person;
(g)Â Â Â The User has obtained all necessary consent or permissions in writing from any identifiable person or minor featured in the Content from the relevant individual or from the relevant minorâ€™s parent or legal guardian;
(h)Â Â Â The User is not in breach of any employment or other contract with any third party by granting the license to the Company under paragraph 6 of these Conditions;
(i)Â Â Â The User has not licensed the Content to any third party or given the Content to any other media outlet or agency; and
(j)Â Â Â The User does not currently and will not in future use, exploit, submit or authorize or cause any other person to use for any purposes, material which is the same as or substantially similar to any Content Submitted by way of the Form in the Territory.
5.2.Â Â Â Â Â The User agrees to indemnify and keep the Company and its Group indemnified from and against any and all claims, actions, proceedings, damages, losses, liabilities and expenses (including legal fees) suffered or incurred by the Company or its Group arising out of or in connection with any one of the following:
(a)Â Â Â any failure by the User to obtain the necessary licenses, rights and consent in writing in and to any Content that the User Submits by way of the Form in accordance with paragraph 3 of these Conditions;
(b)Â Â Â any claim that the Content infringes the Intellectual Property Rights or other proprietary or privacy rights of a third party or breaches a duty of confidentiality to a third party;
(c)Â Â Â any claim that the Content infringes any data protection rights held by a third party;
(d)Â Â Â anyÂ claim for royalties or other payments due to third parties in respect of the use of the Content;
(e)Â Â Â the inclusion of any Inappropriate Content in any Content or any failure to comply with the Content Requirements;
(f)Â Â Â any other breach of the Conditions by the User.
6.1.Â Â Â Â Â By Submitting any Content to the Company, the User grants to the Company and the rest of its Group an exclusive, worldwide, royalty-free, irrevocable, perpetual, sub-licensable and transferable license in the Territory to use the Content for the Permitted Use. This license shall include the right to sub-license and sell the Content and Derivative Works to third parties for the Permitted Use in the Territory, but places no obligation on the Company to do so. The User agrees that:
(a)Â Â Â such license shall continue in perpetuity;
(b)Â Â Â the Company or any member of its Group shall be entitled to edit, re-size, crop and/or correct technical errors in the Content in order for it to be used for the Permitted Use; and
(c)Â Â Â the Company or any member of its Group shall be entitled to sub-license or assign all or any of its rights under this paragraph 6.1.
6.2.Â Â Â Â Â The User waives and, where the User is a company, the User confirms that its employees who created the Content have waived, their Moral Rights in connection with the Content.
7. Right to remove Content
7.1.Â Â Â Â Â The Company or any member of its Group, as applicable, reserves the right to stop distributing or otherwise licensing, selling, or monetizing any Content (if applicable) and to remove any Content from their websites at any time without notice and at their sole discretion even if the Content was previously accepted, for any reason, including (without limitation):
(a)Â Â Â any Content which the Company or any member of its Group considers to contain Inappropriate Content or which does not comply with the Content Requirements or any other of these Conditions;
(b)Â Â Â where the User fails to provide written evidence of any license or consent of a third party owner of material contained in the Content or identifiable person or minor featured in the Content upon request from the Company in accordance with paragraph 3.2;
(c)Â Â Â any Content in respect of which the Company or any member of its Group has received notification that such Content infringes, or may infringe, the Intellectual Property Rights or other proprietary or privacy rights of a third party or breaches a duty of confidentiality to a third party; and/or
(d)Â Â any Content in respect of which the Company or any member of its Group has received notification that such Content infringes, or may infringe, the data protection rights of any third party or in respect of which any consent to process any Personal Data contained within the Content has been withdrawn.
7.2.Â Â Â Â Â If the Company or any members of its Group, as applicable, remove any Content from their websites pursuant to paragraph 7.1, the Company will notify the User and the license granted to the Company and to its Group under paragraph 5 of these Conditions shall terminate upon such notification and the Company shall as soon as reasonably practicable cease displaying such Content on its website.
8. Â Â Â Â Â Â Â Security
8.1.Â Â Â Â Â If the User chooses, or is provided with, a user identification code, password or any other piece of information as part of the Companyâ€™s security procedures, the User must treat such information as confidential, and must not disclose it to any third party. The Company has the right to disable any user identification code or password, whether chosen by the User or allocated by the Company, at any time, if in the Companyâ€™s opinion the User has failed to comply with any of the provisions of these Conditions.
8.2.Â Â Â Â Â The User is also responsible for ensuring that all persons who Submit Content at the Userâ€™s recommendation are aware of these Conditions, and that they comply with them.
9.Limitation of liability
9.1. Nothing in these Conditions will exclude or limit either the Company, any member of its Group, or the Userâ€™s liability for:
9.1.1.Â Â Â fraud or fraudulent misrepresentation;
9.1.2.Â Â death or personal injury caused by its negligence;
9.1.3.Â Â willful breach of this agreement; or
9.1.4.Â Â any other liability that cannot be excluded or limited by law.
9.2. The Company, nor any member of its Group, shall be liable to the User under or in connection with these Conditions, or any collateral contract, whether arising under statute or out of breach of contract, tort (including negligence), breach of statutory duty, or otherwise, for:
9.2.1.Â Â any loss of profits, business, goodwill, reputation or loss of damage to, or corruption of data; or
9.2.2.Â Â any special, indirect or consequential losses.
10.1. Subject to clause 10.2, this Agreement shall commence on the Effective Date and run for a minimum period of 12 months (hereinafter referred to as the Initial Term). After the Initial Term this agreement shall continue until either party terminates this agreement by giving the other three monthsâ€™ written notice.
10.2. The Company may terminate this agreement at any time with immediate effect in the event that it becomes aware that, or the User is found to be in breach of, any of the Warranties set out at clause 5.
11. Effect of Termination
11.1. The Company will be entitled to, but shall be under no obligation to, continue to sell, promote or otherwise monetize the Content for the duration of the three-month written notice period. At the end of the three-month written notice period, the Company shall cease promotion of the Content.
11.2. Termination of this agreement will not affect any accrued rights or liabilities that either party may have at the time of termination or by the time termination takes effect.
11.3. Termination of this Agreement will not affect the licenses granted to the Company or its Group to use the Content for the Permitted Use, which are irrevocable, perpetual and will survive termination.
11.4. Termination of this Agreement will not affect any sub-licenses granted by the Company or any member of its Group to any third party in accordance with this Agreement, including licenses granted to the Third Party Operator to use the Content for the Permitted Use, which will survive termination of this Agreement.
12. Written Communications
12.1. Applicable laws require that some of the information or communications the Company may send to the User should be in writing.Â The User accepts that communication with the Company will be mainly electronic.Â The Company may contact the User by e-mail or provide the User with information by posting notices on its website.Â For contractual purposes, the User agrees to this electronic means of communication and the User acknowledges that all contracts, notices, information and other communications that the Company provides to the User electronically complies with any legal requirement that such communications be in writing.
13.1. All notices given by the User to the Company should be sent to the Company:
13.1.1.Â Â by e-mail to:Â Â email@example.com
13.2. The Company may give notice to the User at either the e-mail the User provides to the Company when registering as a User. Notice will be deemed received and properly served immediately when posted on its website or 24 hours after an email is sent.
14. Transfer of rights
14.1. The contract between the User and the Company is binding on the User and the Company and on each partyâ€™s respective successors and assigns.
14.2. The User may not transfer, assign, charge or otherwise dispose of any of their rights or obligations under these Conditions without the Companyâ€™s prior written consent.
14.3. The Company may transfer, assign, charge, sub-contract or otherwise dispose of any or all of its rights or obligations under these Conditions.
15.1. The rights and remedies of either party in respect of these Conditions shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time granted by such party to the other nor by any failure of, or delay by the said party in ascertaining or exercising any such rights or remedies. The waiver by either party of any breach of these Conditions shall not prevent the subsequent enforcement of any subsequent breach of that provision and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.
15.2. Nothing in these Conditions creates any partnership, fiduciary, employer/employee relationship or other professional relationship between the User and the Company.
15.3. The parties acknowledge that, in entering into this agreement, neither party has relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between the parties prior to such agreement except as expressly stated in these Conditions.
15.4. If any of these Conditions are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
15.5. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
15.6. A person who is not a party to this agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
15.7. The Company may revise these Conditions at any time by updating this page or by posting notices elsewhere on its website. Any changes to these Conditions shall be applicable from the date of posting on the website. Users should check these Conditions each time they Submit any Content by way of the Form.
15.8. These Conditions are governed by the law of the state of Hawaii, which shall have exclusive jurisdiction over any claim arising from, or related to, a visit to the site (although the Company retains the right to bring proceedings against the User for breach of these Upload Conditions in their country of residence or any other relevant country).