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TERMS AND CONDITIONS

Preliminary Note

FACITY is an online project which started up in 2008. A varied collection of photographs, which are updated on a daily basis, of cities worldwide are shown on its website. FACITY adheres to its aesthetic concept, the „FACITY MANIFEST“, in which strict rules have been laid down on how photographs are to be taken. Thus, only those photographs taken in compliance with these rules are included in the collection. FACITY was launched as an artistic enterprise, and we are pleased to acknowledge that, in the meanwhile, several hundred photographers from all over the world have joined to participate in the project. So far all costs incurred by FACITY, seen from the current state of affairs, i.e. July, have been carried out of our own pockets. This, considering FACITY’s continual growth, will no longer be possible in future. In order to continue to keep FACITY alive, we have been forced to find other means of financing the project. We believe this goal can be achieved by implementing different kinds of business structures, which follow and support the lines of our project, and from which all those who participate in FACITY will benefit. The implementations are as follows:

• sponsors, co-operation or advertising partners, who will use the website to promote their brands, or place advertisements
• selling photographs from our collection, a single one or collective ones
• selling books containing photographs of our collection

To facilitate these implementations it is absolutely necessary for FACITY to gain unlimited rights to its collection of photographs. Therefore, these rights have to be assigned to FACITY by the photographers. Furthermore, they have to make sure that all persons, who have been photographed, agree explicitly to such assignments. This, however, does not exclude photographers from using photographs for their own individual purposes. On the contrary: each photographer reserves the right to promote, show or sell his or her FACITY photographs apart from endeavours undertaken by FACITY. The following TERMS AND CONDITIONS are set out to govern the legal relationship between FACITY as a provider, and those i.e. users and visitors to the website. By using or accessing FACITY you accept the given TERMS AND CONDITIONS.

1. The Validity of the Terms and Conditions

The following Terms and Conditions apply to any of the content or all content, applications or any other services, which are displayed and offered on the website of FACITY. The user agrees to these Terms and Conditions on registering and thereby rendering Personal Data. He or she accepts to be notified of any changes to the Terms and Conditions which is done only by email to his or her registered email address. Unless a user explicitly expresses his or her disagreement in writing, or by email within a period of four weeks after notification, such changes are deemed to be accepted.

2. The Contact established between FACITY and User

2.1 Any person sui juris (who hast the right to enter into contracts) can participate in FACITY’s Photo Project as a photographer subject to a duly executed registration. The photographer undertakes to provide the requested data fully and accurately.
2.2 Generally seen, any person can participate in FACITY’s Photo Project using his or her own portrait (hereinafter: „model“). He or she can either contact a registered photographer directly or send an email to FACITY, who will in return forward the email to a photographer in the vicinity of the „Model“ concerned. Any further communication between the two (parties) has to be carried out personally. FACITY uses its best endeavours to honour each request, but is nevertheless not obliged to do so.
2.3 After having successfully registered, each photographer will receive a password thus facilitating access to a particular page of the website enabling him or her to upload photographs. Furthermore, it is FACITY’s intention to maintain a continuing work relationship with all its photographers. In return the photographer will make every effort to provide FACITY with at least one photograph a week for a period of at least six months. However, all photographs have to comply with the strict rules of FACITY’s aesthetical concept, i.e. “FACITY MANIFEST“. It is forbidden to upload any photographs which do not fully comply with the rules set out.
2.4 The photographer gives his approval to FACITY, who is thereby entitled to provide his or her registered email to anybody interested.

3. Displaying and Deleting of Photographs

FACITY is by no means obliged to show/display, or make an uploaded photograph available on its website. It is entirely within FACITY’s own discretion whether or not to delete a single photograph, or all photographs of a photographer. In particular, however, when evidence has arisen that the displaying of such a photograph infringes the rights of a third party. Furthermore, FACITY is not obliged to notify the model or photographer in such a case.

4. Assignment of Rights

4.1 By fulfilling the requirement of registration the photographer thereby assigns the exclusive and transferable as well as unrestricted world-wide rights in perpetuity to FACITY of all photographs which are to be uploaded on FACITY’s website. The assignment is free of charge.
4.2 The photographer reserves the right to use and exploit uploaded photographs for his or her own purposes. However, if a photograph is to be published in a print or similar media then the photographer is obliged to immediately notify FACITY of the circumstances involved i.e. when, where and which chosen media the publication will appear. This does not apply in the case of a photograph being made available on the internet or internet-based networks for example, social networks such as Facebook, Flickr, or within the scope of personal internet presentations.
4.3 By assignment of the rights FACITY is entitled to make use of all kinds of exploitation in any existing media or future forms of media. The type of use includes advertising, but is not restricted to it. FACITY is permitted to copy, distribute, display/show, make available, broadcast, transmit, archive and edit the photographs. Exploitation can be realized in any form or in any kind of media, in particular, the Internet or comparable networks, TV, print media, analogue or digital data carriers of any kind which can be in a single way or together with other photographs, pictures, data, writings or sounds.
4.4 By assignment of the rights FACITY, together with a photograph, is allowed to give the name of the photographer and his or her nationality. If any data concerning the model is available such information can be given as well, i.e. his or her name, date of birth and his or her profession (hereinafter: “personal data”). The photographer has the right to exclude all or part of the information from being forwarded by clicking the button, the one, intended for this purpose, found on the page from which he or she uploads the photograph. Failing to do so the photographer automatically grants his or her approval to FACITY to proceed as set out above. The photographer is entitled to revoke his approval, as to the naming, apart from his own name and nationality, in writing. The revocation must be addressed to FACITY, Schwedter Straße 13, D-10199 Berlin, (contact@facity.com). Facity does not have the right to use any personal data for purposes other than stated above. Only if the photographer explicitly agrees to such usage, or with the object of concluding the Terms and Conditions of a contract, permission is given to use personal data. For further details see DATA DECLARATION (link) and the APPROVAL FOR USING PERSONAL DATA (link).

5. Termination of Rights

If a model revokes his or her approval as to the rendering of his or her personal data, in writing, FACITY will delete the personal data from its website. If a model disagrees to the exploitation of his or her photo, as set out in Clause 4, FACITY will delete the photograph within a period of 14 days after having received written notice of the disagreement. However, FACITY still maintains the right to accomplish current exploitation of the photograph. Furthermore, duly assigned licenses to third parties stay in force for the full term of the license agreement.

6. Warranty and Indemnification Clause

6.1 The photographer warrants that he or she is the owner of the rights under Clause 4, and moreover, that he or she is entitled to assign those rights to FACITY. He or she hereby warrants that the assignment of the rights does not infringe any third party rights, and particularly warrants that the model has approved this assignment, and FACITY’s unlimited exploitation rights regarding the photograph, including FACITY’s right as to the rendering of his or her personal data if applicable. The photographer exempts FACITY from any or all liability claims which may arise out of the execution of the assigned rights, or from a breach of any warranty as given in this clause which includes, but is not limited to any reasonable legal costs and/or attorney’s fees.
6.2 If a third party files a claim against FACITY, the photographer is obliged to immediately provide FACITY with full information in accordance with the facts, which is necessary to examine the claim made and to take the necessary steps in defence against the claim. Moreover, the photographer ensures to support FACITY, in a reasonable manner, in the case of any legal action taken.

7. Nonliability

7.1 FACITY does not accept any liability for the completeness and accurateness of the personal data provided and displayed on its website. FACITY does not accept any liability for damages of the user’s own computer system unless it is caused by intent or gross negligence.
7.2 FACITY does not accept any liability for internet offers and announcements of its cooperation or advertising partners and for websites to which FACITY provides a link.

8. Copyright

It is not allowed to copy, distribute or make available any content of this website with the exception of FACITY’s prior written approval. For the avoidance of doubt, this does not apply to the photographer’s right to use and exploit photographs for his or her own purposes as set out in Clause 4.2.

9. Final Clause

9.1 If a provision of any of these TERMS AND CONDITIONS is held to be invalid, or becomes invalid, all other TERMS AND CONDITIONS remain in full force and effect.
9.2 These TERMS AND CONDITIONS and the contractual relationship between FACITY and its users are governed by the laws of Germany.
9.3 Any legal disputes to be settled between FACITY and its users, as far as legally permitted, the exclusive jurisdiction is the Courts of Berlin.