User agreement

Effective date: 7th of April 2017

1. INTRODUCTION

Welcome to Byrd.

1.1 Thank you for using Byrd. Byrd is incorporated as Byrd ApS, business registration number 38 31 17 27, with a registered office at Classensgade 25 A, 2100 Copenhagen, Denmark. You can reach Byrd at +45 71 99 88 95 or at hello@byrd.news.

1.2 Byrd is a global marketplace for user-generated videos and photos (collectively referred to as "Content") that have news value or are of public interest. Byrd facilitates purchases and sales of licences to the Content through advertisement on the websites byrd.news, byrdapp.com, byrdapp.net and byrd.dk. All of these services are collectively called "the Service". The Service can be accessed through web and applications for mobile devices (collectively called "the Platform"). To access the Service, you need to be a user ("User", in plural "Users"). You (referring to the User) become a User once you have set up a User Account ("User Account"). If you purchase a licence to any Content, you become a Licensee ("Licensee"). If you sell a licence to any of your Content, you become a Licensor ("Licensor").

1.3 The Service is subject to your agreement to and compliance with the conditions set forth in this User Agreement ("the Agreement"). When creating a User Account to use the Service, it is constituting your accept of the Agreement, by which you are creating a binding contract between you and Byrd. Prior to doing so, you must read, agree with and accept all of the terms and conditions contained in this Agreement and in the incorporated documents to the Agreement. See appendixes Privacy Policy and Cookie Policy. The Agreement is available to you on Byrd's website www.byrd.news and is concluded in English.

1.4 As long as you are in compliance with the conditions of this Agreement and all incorporated documents, Byrd hereby grant you a limited, revocable, non-assignable, non-transferrable, non-sublicensable and non-exclusive access to use the Service. No rights not explicitly listed are granted to you. 

1.5 All objects appearing on Byrd, including but not limited to the Content, text, layout (e.g. graphics, logos, names, designs, page headers, button icons, scripts, and service names) and sound, are protected by intellectual property rights or ownership rights and belongs to either Byrd, a User or a third party, whom Byrd has entered into an agreement with. You may not use the abovementioned for any purpose whatsoever other than as permitted by this Agreement.

1.6 Byrd may revise or update this Agreement by posting an amended version through the Service. If a modification is significant, Byrd will make you aware of the modification, either through the Service, and/or through contact information provided by you. Your continuous use following a such update is considered as an acceptance of the updated Agreement. If you do not accept the update, you must stop using the Service.

1.7 Byrd reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service, or any part thereof, with or without notice.

1.8 Any not utilised enforcement of this Agreement does not constitute a waiver of rights of Byrd, see further in subsection 10.3.

 

2. USER ACCOUNT

2.1 Usage requires a User Account. It is free and easy to set up a User Account.

2.2 When you set up a User Account, you guarantee that the information provided by you is correct and sufficient and that you will revert to Byrd if this information changes. You also guarantee that you will keep your password information safe and that you will instantly inform Byrd in case of any unauthorised usage of your User Account. 

2.3 Byrd may use your contact information for administrative or verification purposes related to your Content or in relations to specific projects. You can unsubscribe at any time by sending an e-mail to hello@byrd.news. See more in Privacy Policy and Cookie Policy.

2.4 The User Account is strictly personal and you can only use your own personal User Account, see however subsection 2.6.

2.5 If you are a natural person, you must be at least eighteen (18) years old to use the Service. By using the Service, you guarantee that you meet this minimum age requirement. 

2.6 If you are a legal entity, all your employees are entitled to use the User Account in their work, regardless of subsection 2.4. All your employees using the User Account must then be at least eighteen (18) years old. 

2.7 Byrd does not investigate or perform any background checks on Users. Therefore, it is up to you to ensure your own safety in your interactions with other Users of the Service and in your activities conducted in connection with the Service.

2.8 Your User Account will to the public show your screen name chosen by you when setting up your account and your full name if you have permitted this.

2.9 You agree that no joint venture, partnership, employment, or agency relationship exists between you and Byrd as a result of this Agreement or your use of the Service. You can therefore not commit Byrd or act on any other Users behalf. 

2.10 Some parts or all of the Service may not be available to the general public, and Byrd may impose rules of eligibility from time to time. Byrd reserves the right to amend or eliminate these eligibility requirements at any time.

 

3. USER CONTENT

3.1 You can use the Service for publishing Content, purchasing licences to Content and to sell licences to Content. You can purchase Content through requesting a sale of licence to a specific piece of Content, while you sell a licence to a specific piece of Content through publishing Content on the Platform or respond to a specific request or to offer Content.  All Content on the Platform is the property of the User, who uploaded the Content and the Content is protected by intellectual property laws. After a sale of a licence the User retains full rights and ownership of the Content, subject to the terms of this agreement.

3.2 You are under no obligation to publish anything through the Service once you have set up your User Account. If however, you choose to publish any Content through the Service, you hereby grant Byrd a perpetual, revocable, transferrable, sub-licensable, worldwide, fully paid up, royalty-free, right to display and facilitate the sale of a licence to your Content. As part of facilitating a sale, Byrd may display your Content for marketing purposes. The display can be on any media now known or hereafter created. 

3.3 You agree that you will not violate any applicable law or regulation in connection with your use of the Service. 

3.4 When publishing Content on Byrd, you guarantee that:

3.4.1 The Content is your own original creation.

3.4.2 You possess all necessary rights to dispose of the Content, including but not limited to all the necessary rights to publish and potentially sell the right of use to a third party.

3.4.3 The Content does not infringe any intellectual property rights.

3.4.4 The Content is not libellous, defamatory, pornographic, obscene, indecent, inappropriate, invasive of privacy or publicity rights, abusing, harassing, threatening, bullying or otherwise objectionable.

3.4.5 The Content does not contain or entail any privacy violations. 

3.4.6 The Content is correct, real and not staged with the intention to sell. 

3.4.7 The Content is not assigned to any other contract, agreement or licence, in instances where the Content is requested sold as an Exclusive time limited licence, see further in subsection 4.2.2. 

3.4.8 That you will not modify, adapt, translate, copy or disassemble any portion of the Service.

3.4.9 That you will not interfere with or disrupt the operation of the Service, including restricting or inhibiting any other person from using the Service by means of hacking or defacing. 

3.4.10 That you will not transmit to or make available in connection with the Service any denial of service attack, virus, worm, Trojan horse or other harmful code or activity.

3.4.11 That you will not publish or otherwise provide false, incomplete or misleading information on the Service. 

3.5 If you request Byrd to remove your Content from the Service, the right of Byrd to market your Content automatically repeals thirty (30) days after your request.

3.6 You can report Content and User behaviour if the Content or User behaviour is subject to a breach of the User Agreement. See clause 11.

3.7 Byrd retains the right to, at any given time and at Byrd's sole discretion, to remove Content that might be subject to breaches with this Agreement. 

 

4. SALES AND PURCHASES OF LICENCES THROUGH THE SERVICE

4.1 Users are able to sell and purchase published Content through licences. Users are also able to request production of Content for a potential sale of licence, see section 5. The User may at any time choose to change the licence type of the Content.

4.2 The Service offers facilitation of two types of sales of licences to Content:

4.2.1 Non-exclusive licence

Content for editorial use by the media. The Licensee pays a one-time fee to gain the right of use of a specific piece of Content. The Content can be used by the Licensee across several projects, including but not limited to reproduction and distribution on different media types and platforms on a permanent basis. The use of the Content by the Licensee is subject to clause 6. The price is subject to clause 7.

4.2.2 Exclusive time limited licence

Content for editorial use by the media. The Licensee pays a one-time fee and gains an exclusive right of use to a piece of Content within a specific Country for a period of twelve (12) months. The Licensee can only store and process the licensed Content to the extent necessary to use the Content and only within the granted period of twelve (12) months. However, the Licensee retains a perpetual right to use and store editorial products containing the licensed Content, as long as these editorial products have been produced within the twelve (12) month period. The Content in this category must be created through Byrd's mobile device application in order to enable geographical identification of the Content. If the Licensee wants to use the Content in several countries simultaneously, the Licensee must purchase an individual right for every country of which the Content is intended to be used within. The use of the Content by the Licensee is subject to clause 6. The price is subject to clause 7.

4.3 All Licensors retain the rights to use their Content in personal portfolios and exhibitions regardless of the rights granted to the Licensee.

 

5. REQUESTS

5.1 The Service permits the Users to put forward requests for Content. Requests will specify the type of Content, licence type and optional price range as well as deadline for other Users' submission of Content.

5.2 Byrd announces requests for Content. The User will receive the announcements as a notification if the User has informed Byrd that the User wishes to receive such notifications. If the request for Content is location based, the User will only receive a notification if the User has accepted that Byrd uses the User's location. Please see more in Byrd's Privacy Policy.

5.3 A request for Content cannot be unlawful, defamatory or encourage offensive or inappropriate behaviour. Byrd always maintains the right to, at its own judgement, remove a request in case Byrd finds the request to encourage such abovementioned elements. The requesting User does not receive any compensation of any sort in case of a removal.

5.4 A User can reply to a request for Content.

5.5 Some Users may request other Users to engage in certain activities in order to produce certain Content. If the User chooses to do so, such activities are at the User's absolute sole risk. The User understands and agrees that Byrd is not responsible for any damage, injury, death or harm that the User may suffer as a result of the User's activity in response to requests on the Service. 

5.6 If a User, who has put forward a request for Content, does not find the published Content satisfactory, the Content will maintain available on the Service for other Users to purchase licences for. No damages can be inquired in this case. Users understand and agree that Byrd is not responsible for any damages suffered in relations hereto.

 

6. GRANT OF LICENCE

6.1 When a licence is granted, the User publishing the Content on the Platform becomes the direct Licensor, while the User requesting the purchase of a license for the use of the Content becomes the Licensee. Although Byrd may facilitate a sale of a licence through the Service, both the Licensor and the Licensee understand and agree that Byrd is not granting this licence to the Licensee. The Licensor has granted a licence to the Licensee, containing a right of use. The right entails that the Licensee is entitled to use the purchased Content for editorial purposes, see subsection 6.5. The Licensee cannot sell or assign the right of use to any third party. The Licensee guarantees that any use relating to the purchased Content is in accordance with this Agreement.

6.2 If the Licensee has any subsidiaries or affiliated companies, the Licensee can only use the licence within its own legal entity. A use in another legal entity necessitates a separate purchase for that legal entity. The Licensee can however contact Byrd at license@byrd.news to enter into a specific agreement.

6.3 Licensee cannot use the Content as a logo or trademark, neither fully nor partially.

6.4 The Licensee can only use the Content for editorial purposes and in connection to editorial content. This means that the use of the Content must be in connection to, or in regards to, events of news value or public interest and must be suitable for either online media (e.g. newspaper websites, internet media), TV-stations, web-TV-stations, magazines, papers or other physical media and other related publications. Apart from the above the Content cannot be used for any commercial purposes, including but not limited to activities such as advertisement, marketing and other activities directly related to commerce.

6.5 The Content may not be altered nor made accessible to the general public in a manner or in a connection that is violating the author's literary or artistic reputation or character. The Licensee using Content of artistic character must at all times give credit to the Licensor. Licensee is allowed to crop the Content as long as the Licensee still credits the Licensor when using the Content. The licence to the Content is sold "as is" and "as available" and no additional guarantee, whether directly or indirectly, can be given. Byrd cannot be held liable in this relation if all instructions, following from this Agreement and as communicated between the parties, are followed.

6.6 The Content must comply with the following rules of reference:

6.6.1 Offline/print Content

The byline "Photo: Byrd" must be placed under or near the Content. If there are any persons in the Content, the byline must be "Model photo: Byrd".

If the Content shows a single person or a few persons that can be easily identified and who are the main focus of the Content, the byline must be "Model photo/video: Byrd". It is the responsibility of the User to gain the specific, informed and voluntary consent from the identifiable person or persons in the Content before uploading it to the Platform.

The use of Content requires a statement of credit to the Licensor in accordance with good practice. The credit should appear under or near the Content as follows: “Byrd/[insert Content owner name]”. 

6.6.2 Online

Where possible, the link www.byrd.news must be placed under or near the Content. Alternatively, the byline must be "Photo/video: Byrd". The byline must be placed under or near the Content, on the same page as the main article of which the Content is illustrating.

If the Content shows a single person or a few persons that can be easily identified and who are the main focus of the Content, the byline must be "Model photo/video: Byrd". It is the responsibility of the User to gain the specific, informed and voluntary consent from the identifiable person or persons in the Content before uploading it to the Platform. 

The use of Content requires a statement of credit to the Licensor in accordance with good practice. The credit should appear under or near the Content as follows: “Byrd/[insert Content owner name]”. 

6.6.3 Crediting the Licensor

The Licensee using Content must at all times give credit to the Licensor. The credit should appear as follows: “Byrd/[insert Content owner name]”.

 

 7. PAYMENT

7.1 Byrd facilitates licensing of Content. There are two forms of licences:

7.1.1 Non-exclusive licence: The price for purchasing Content regulated by the Non-exclusive licence is decided by the - at any time being - pricelist on www.byrd.news/pricelist. The price is a one-time fee that must be paid up front. The licence does not entail any royalty payments.

7.1.2 Exclusive time limited licence: The price for purchasing Content regulated by the exclusive time limited licence is decided by the Licensor. The price can maximum amount to the Exclusive Maximum Price listed in the pricelist on www.byrd.news/pricelist. The price is a one-time fee that must be paid up front. The licence does not entail any royalty payments.

7.2 The Licensee understands and agrees that Byrd does not guarantee that the Content can be sold for the set price. Furthermore, requests for Content can entail a set price by the requesting user. In this case, the price set by the requesting user prevails any price set by the Licensor.

7.3 The Licensor receives 15 euro per photo Content and 30 euro per video Content when selling on a non-exclusive licence. Byrd receives the remaining part of the payment, which varies according to who the buyer is. The Licensor receives 80 % of the price when selling on an exclusive licence. Byrd receives the remaining 20 %.

7.4 No VAT or potential other fees are included. Such fees and VAT will be applied as an add-on to the price in accordance with respectively the Licensee and the Licensor's national legislations. The Licensee is solely responsible and liable to ensure that all fees, taxes, VAT and other payments relating to the Licensee's purchase of a licence have thoroughly been paid. Likewise, the Licensor is solely responsible and liable to ensure that all fees, taxes, VAT and other payments relating to the Licensor's sale of a licence have thoroughly been paid.

7.5 No refunds can be made and Licensee must pay the full amount for the purchased licence, regardless the condition of the Content. However, the Licensee is entitled to file a complaint accordingly to clause 11. Byrd may then, at Byrd's sole discretion, chose to provide the Licensee another similar piece of Content.

7.6 Licensor cannot perform any off setting subject to a counterclaim.

7.7 Payment terms will follow from the Service or at byrd.news. All prices are stipulated in EUR. Byrd is using Stripe, a third-party payment processor, to complete the payments. The processing of payments will be subject to terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. You must read and accept these terms to become a User. Byrd is not responsible for any errors caused by the payment Processor.

 

8. INDEMNIFICATION

8.1 Byrd guarantees to be entitled to facilitate the license to the Content. However, Byrd does not hold any liability in regards to the actual Content in terms of logos, designs, architecture, furniture, persons or other subjects depicted in the Content.

8.2 Licensor is solely liable for the Content and it is up to the Licensee, to assess whether a third party approval is necessary to ensure compliance and avoid intellectual property infringements. Byrd does not review, control or endorse any published Content. Therefore, Byrd is not liable in any way in relation hereto.

8.3 The User agrees to defend, indemnify and hold Byrd and Byrd's suppliers harmless from all allegations, judgments, awards, losses, liabilities, costs and expenses. Byrd is not liable for any losses suffered by the User or losses due to any agreements between Users. Therefore, Byrd cannot be held liable for any losses suffered by this use, including but not limited to errors and/or defects or unauthorised usage of the User Accounts. 

8.4 Byrd is not liable in case your User Account name entails that you can be identified through your Content. In the case of a data loss, fail of system, lack of accessibility, delays, disruption or likewise, Byrd will try its utmost to restore the loss of data due to available backups to the extent possible, but does however, not hold any liability in this relation. 

8.5 While Byrd make reasonable efforts to ensure that the Service remains available at all times, Byrd do not represent or warrant that access to the Service will be error-free or uninterrupted, or without defect, and Byrd do not guarantee that you will be able to access or use the Service, or its features, at all times. 

8.6 Byrd does not guarantee any certain amount of Content at the Service. Byrd cannot be held liable if the amount or a specific piece of Content is removed from the Service.

8.7 Byrd is not liable for any typographical errors or inaccuracies and reserves the right to correct any of such errors.

8.8 When referring to Byrd in this clause, Byrd's parents, subsidiaries, affiliates, directors, shareholders, members, managers, employees and suppliers, are also held under the same indemnifications.

 

9. FORCE MAJEURE

9.1 Byrd cannot be held liable, directly or indirectly, in any way in the event of force majeure. Amongst recognised force majeure events are; war, nature disasters, strikes, fires and other conditions of which Byrd is not in charge of. In case of a force majeure event, delivery according to this Agreement is suspended until the force majeure condition is passed. If the delay remains for more than a month, both parties can terminate the licence agreement (as stipulated in clause 6) without notice and without payment of compensation or damage to the other party.

 

10. MISCELLEANOUS

10.1 The Service may contain links to third party webpages. Byrd does not endorse any website or services through the provision of such a link. Thus, Byrd cannot be held liable in any way in regards to these third parties and their use of your information, that you provide them with, once you visit their webpage. 

10.2 Byrd may assign Byrd's rights under this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign this Agreement without Byrd's prior written consent, and any unauthorized assignment by you will be null and void. However, see subsection 2.6.

10.3 If any provision of this Agreement is found for any reason to be unlawful, void or unenforceable, then that provision will be given its maximum enforceable effect and will not affect the validity and enforceability of any remaining Agreement.

 

11. DISPUTES

11.1 If you find any Content to be abusive or infringing, you must immediately inform Byrd by sending an e-mail to Byrd at report@byrd.news. The complaint must contain: i) a description of the Content, ii) a description of where on the Platform the Content can be localised iii) your contact information. 

 

12. CHOICE OF LAW AND VENUE

12.1 If a dispute cannot be solved through a complaint process, disputes must be solved by the City Court of Copenhagen. All disputes will be subject to Danish law. 

12.2 In case of any contradictions in different language versions of the Agreement, the English version shall prevail.

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