SUPERSPORT SCHOOLS MEDIA MARKETPLACE
TERMS OF SERVICE CONTRIBUTORS
JULY 2022
TERMS OF USE FOR CONTRIBUTOR (“PHOTOGRAPHER”)
Where the context requires, SuperSport Schools (Pty) Limited (hereinafter “SSS”) and its Affiliates, operate a marketplace for sports photography and various audio-visual media. SuperSport Schools customers pay a fee to license content from the SuperSport Schools marketplace website.
By agreeing to register on the marketplace and use the Website to offer your media content for temporary or perpetual licence, you agree that your rights and obligations are controlled solely by the terms of service set out below.
The following Terms of Service (“TOS”) is a legally binding, non-exclusive agreement between you and SuperSport Schools (the “Parties”). Please read the TOS carefully and be sure you understand it fully. The TOS describes and controls your legal relationship with SuperSport Schools, the rights you are granting to SuperSport Schools in any photographs, images, vectors, or other media together with any associated keywords, metadata and/or titles submitted by you to SuperSport Schools (collectively, “Content”), and the uses SuperSport Schools may make of the Content.
By submitting content to SuperSport Schools, you agree to all the terms in this agreement.
1. OVERVIEW
1.1. By submitting any Content to SSS, you grant to SSS a worldwide, sublicensable, non-exclusive right and license to index, analyze, categorize, archive reproduce, publicly display, sell (perpetual licence), advertise and market, any Content uploaded by you and accepted by SSS for any reasonable business purpose, including but not limited to the distribution of your Content to SSS customers for sale and licence. You also give permission to SSS to add, modify or remove information related to your Content in order to manage and license such Content.
1.2. You are granting SSS the non-exclusive right to license and use your submitted Content on its Marketplace Website, which SSS shall make available for sale and licence by its customers and subscribers.
1.3. SSS shall have the right, but not the obligation, to license all Content through any of SSS’s brands and platforms to its customers for use in perpetuity in accordance with license agreements entered into by SSS.
1.4. You grant SSS a worldwide, non-exclusive right to use your name, display name and Content in connection with SSS’s marketing and promotional activities without the payment of any compensation to you. SSS, in the exercise of its discretion, may refrain from any or all of the foregoing without any liability to you.
1.5. You will be entitled to price your own Content that you submit to SSS, for placement on the Marketplace Website.
1.6. SSS will receive a 15% (Fifteen Percent) commission on the sale or licence of any Content you submit. You will receive the remaining 85% (Eighty-Five Percent) as a royalty, paid into your nominated bank account, however in the event that the photographer wishes to donate the purchase/licence value, it shall be for the benefit of the SSS Bursary Fund.
2. PRIVACY, PERSONAL INFORMATION AND DATA PROTECTION
2.1. You shall comply with the Data Protection Laws in respect of the Personal Information which you provide to SS and which it processes. Notwithstanding anything contrary in the Agreement, the Parties will be required to perform and/or omit performing any act, where doing so would result in that Party infringing Data Protection Laws.
2.2. The provision of privacy, protection of Personal Information, and data protection shall be regulated in accordance with the POPIA. Both Parties will be responsible for complying with all Data Protection Laws and will cooperate in good faith and provide reasonable assistance to each other to ensure such compliance with such Data Protection Laws.
2.3. The provision of privacy, protection of Personal Information, and data protection in terms of international and transborder use and broadcasting shall be regulated in accordance with the POPIA and any and any applicable Data Protection Laws.
2.4. The Parties expressly record that in the context of this Agreement, inter alia, Personal Information of children and Special Personal Information are applicable in terms of the POPIA.
2.5. You shall be responsible for obtaining informed Consent from Data Subjects in accordance with the POPIA. In the event that informed Consent is not otherwise obtained then the Content involving the Data Subject(s) shall not be entitled to be displayed on the Website unless and until Consent has been obtained from all Data Subjects. As part of obtaining informed Consent you are obliged to advise the Data Subject that Content may be displayed internationally.
2.6. Where compliance with the POPIA and its Regulations cannot be adhered to and/or in the event that there arises any potential risk of breach of the POPIA or the Privacy Policy of either Party, then SSS shall not transmit or make available any Content so impacted. You will notify SSS of any challenges and deficiencies in this regard in writing. Prior to SSS displaying any Content you shall, in writing, confirm to SSS that you are compliant with the POPIA and its Regulations.
2.7. In the event that Consent is withdrawn by a Data Subject in terms of the rights conferred by the POPIA, then each Party shall notify the other Party of the withdrawal of Consent in writing. Upon receipt of notification thereof each Party shall, in turn, to the best of its reasonable endeavours comply with the deletion or deidentification of the Data Subject’s Personal Information as required by POPIA. Each Party shall then notify the other Party in writing of the action taken to delete or deidentify the Personal Information.
3. OWNERSHIP OF CONTENT
3.1. The copyrights in all Content remain with the copyright owner, and nothing in the TOS shall be construed as a transfer of copyright to SSS, subject to the licenses granted to SSS and SSS’s sublicensees.
3.2. You always retain ownership in and to your Content, which can however be licensed in perpetuity by SSS and its customers pursuant to the Terms of Use (“TOS”).
4. CONSENT RELEASES
4.1. You agree to provide valid and accurate model releases (“Grant of Consent”) for all Content you contribute and provide to SSS that, in SSS’s judgment, contains an identifiable face or figure or other identifiable attribute including, without limitation, name, appearance, or likeness. You also agree to provide valid and accurate releases to SSS for all Content that requires such releases, which determination shall be made in SSS’s sole discretion. All releases shall be electronically delivered to SSS with the Content.
4.2. Some Content you submit may require releases, which you are responsible for providing.
4.3. You agree that you are solely responsible for securing, obtaining and retaining all original releases and maintaining complete and accurate records.
4.4. The submission of falsified, inaccurate or otherwise defective releases is a material breach of the TOS. Releases submitted by you shall not contain any terms inconsistent with the TOS.
4.5. You agree that SSS may furnish copies of releases to customers, as necessary, in order to respond to any potential or actual legal action, to comply with applicable laws, regulations, and/or union reporting requirements, or any other reason SSS deems reasonable in its sole discretion.
5. MARKETPLACE ACCOUNT
5.1. You agree to provide true and complete information relating to your SSS Contributor Account and Content, including but not limited to information relating to the date, location, match, venue and equipment used in connection with creation of the Content.
5.2. Please make sure that information relating to your SSS account and content is true and complete.
5.3. By opening a SSS account, you express your consent to the SSS Privacy Policy, which is incorporated herein by reference and governs SSS’s collection, processing, storage and transfer of the Content and data submitted by you, including data relating to you, your account, your Content or other information related to the foregoing (“Personal Data”). You agree that your Personal Data may be collected, processed, stored, and transferred to jurisdictions other than your home jurisdiction.
5.4. SSS has the right to refuse to establish an account or to close any existing account, for fraud, intellectual property infringement, violation of a third party’s rights including those of privacy or publicity, submission of material that is obscene in nature, violent or that might be construed as defamatory, failure to comply with SSS’s guidelines as may be amended from time to time, for any breach of the terms of this or any other agreement that you have with SSS, or for convenience.
5.5. SSS will terminate your account no later than ninety (90) days following its receipt of a written request from you. For the sake of clarity, before the termination of your account is made effective by SSS, your Content will remain available for license by SSS customers. Notwithstanding the foregoing, in the event that SSS materially modifies the TOS and does not provide you with prior notice, you may terminate your account within thirty (30) days of the effective date of such modifications.
5.6. Following the removal of any item of Content from the SSS Marketplace, SSS may amend any existing licenses to such Content for a reasonable period thereafter.
5.7. If your account is terminated for any reason, you must obtain written authorization from SSS prior to establishing another account. You may not have more than one active contributor account at any time without the written consent of SSS in each instance.
5.8. You may not hold more than one SSS account, or share content with another SSS account, without permission.
5.9. You may not submit identical Content to more than one account without the prior written consent of SSS.
6. CONTENT
6.1. SSS has the right to refuse to accept or to remove Content from the SSS Marketplace for any reason. SSS will remove Content if SSS believes that such Content may (in SSS’s sole discretion) subject SSS or any of its officers, managers, directors or employees to legal action or if the Content violates the TOS. Notwithstanding the foregoing and subject to SSS’s discretion, Content removed by you or opted out by you for any reason may be available for license to those customers that previously downloaded “competition” versions of the removed Content.
6.2. SSS shall use reasonable efforts to cause Content removed from or opted out from SSS Websites to be removed from the websites of any SSS affiliates or partners (including co-branded websites) within ninety (90) days of the removal of the subject Content from the SSS Websites.
6.3. Licenses issued by SSS for any Content that is later removed from the SSS Marketplace will remain in full force and effect in perpetuity.
6.4. SSS will not knowingly license model-released Content for use in contexts that are pornographic, defamatory or deceptive, or in a manner that could be considered libelous, obscene, or illegal in nature.
6.5. SSS may advertise and/or market your Content on social media platforms including Facebook, Instagram, Twitter, TikTok and similar sites and the applications related thereto.
6.6. Your content may be marketed on social media platforms by SSS.
7. COMPENSATION
7.1. SSS shall pay you a royalty of 85% (Eighty-Five Precent) for each unique download of Content for which SSS receives payment. The current royalty rates are set forth on the Earnings Schedule[SW1] , which schedule is incorporated herein by reference. If a customer downloads the same item of Content more than once, you will be paid once only. Please note that there may be a reporting delay for customer downloads reflected in your SSS contributor account.
7.2. Royalty payments and accompanying statements will be issued monthly, on or about the 15th day of each month, for the previous month’s downloads.
7.3. There is a minimum payout rate per accounting period of: R 500 (Five Hundred Rand) (the “Payout Minimum”). If during an accounting period, you haven’t reached the Payout Minimum or provided SSS a valid electronic payment account, your compensation will be rolled over into the next accounting period. If you cancel your account prior to accrued earnings in your royalty account reaching the applicable Payout Minimum, you thereby forfeit such royalties. For clarity, you shall have no right to any earnings accrued following the disabling of your contributor account or until such time as the applicable Payout Minimum threshold is reached.
7.4. If your account is terminated for a breach of the material terms of the TOS, in addition to its other rights at law or in equity, SSS shall have the right to retain any royalties and/or other compensation otherwise payable to you hereunder as liquidated damages.
7.5. You may not use the SSS service as a means of transferring your Content to a single customer or to a small number of customers nor may you download your own Content. Such activity constitutes a material breach of the TOS. If you engage in such activity, SSS may avail itself of all rights it has hereunder, including but not limited to terminating your account and/or retaining any accrued but unpaid royalties.
7.6. SSS may recoup royalties paid to you in connection with refunds issued by SSS by deducting applicable royalties credited to your account. Credit card chargebacks will be treated in the same manner as refunded subscriptions.
7.7. If SSS makes an overpayment of royalties or other compensation to you for any reason, SSS shall have the right to deduct the amount of such overpayment from your accrued royalties or to demand the immediate repayment of such overpaid royalties or other compensation.
7.8. Royalty payments based on a percentage of sales price will be based on the sales price actually received by SSS and calculated after making any necessary deductions for any refunds, cancellations, previous overpayments, and any taxes, levies, imposts, duties, currency exchange costs, or other similar charges that are imposed on the payments received by SSS. If any law, government ruling or any other restriction affects the amount of the payments which SSS’s licensee can remit to SSS, SSS may deduct from Contributor’s royalties an amount proportionate to the reduction in such licensee’s remittances to SSS.
7.9. If you receive your payments through an online payment processing service you may not share your online payment processing service account with another SSS contributor. SSS’s obligation to make payment to you hereunder shall be fulfilled by making payment to the online payment processing service designated by you.
7.10. For clarity, when and where appropriate SSS may assign its rights and obligations regarding Contributor royalties hereunder to related Affiliates, and confirms that the Contributor’s rights to such royalties will not be impaired by any such assignment.
8. SSS TRADEMARKS
8.1. For the purposes of the TOS, the term, “Trademark(s)” means all common law or registered trademarks, logos, service marks, trade names, Internet domain names, or other indications of origin now or in the future used by SSS.
8.2. Nothing contained herein grants or shall be construed to grant you any rights to use any SSS Trademarks.
8.3. You agree that you will not use SSS’s Trademarks in any manner that might tarnish, disparage, or reflect adversely on such Trademarks or SSS. Nor will you contest or otherwise challenge (e.g., in any legal action or otherwise), or assist or encourage any other person or entity to contest or challenge, the validity of any of SSS Trademarks or the Trademark rights claimed by SSS.
8.4. You agree that you will not use any SSS Trademarks or any variant thereof including misspellings) as a domain name or as part of a domain name regardless of the top-level domain, as part of a blog name or social media handle or channel, or as a metatag, keyword, or any other type of programming code or data.
8.5. You may not at any time, adopt or use, without SSS’s prior written consent any word or mark which is similar to or likely to be confused with SSS’s Trademarks.
8.6. The look and feel of the SSS Websites, including all page headers, custom graphics, button icons, and scripts, is the trade dress and/or trademark or service mark of SSS and may not be copied, imitated or used, in whole or in part, without the prior written consent of SSS.
8.7. You may not use SSS’s trademarks in any form without permission.
8.8. You may not frame or hotlink to the SSS Websites or to any item of Content other than your own without the prior written consent of SSS.
8.9. Please do not copy, frame, or hotlink to the SSS websites without permission.
8.10. All rights in and to SSS’s Trademarks not expressly granted to you hereunder are reserved by SSS.
9. COPYRIGHT INFRINGEMENT CLAIMS
9.1. You hereby grant SSS the right and authority to take such steps as SSS deems commercially reasonable to protect SSS’s rights in the Content.
9.2. In the event that you believe that a SSS license to your Content is being misused, you shall take no action against a SSS licensee without providing notice of such misuse to SSS and receiving SSS’s prior written consent to such action.
9.3. If you would like to submit a notification of alleged infringement for Content on the SSS site, please send us a communication.
9.4. While SSS takes commercially reasonable steps to ensure that the rights of its Contributors are not violated by customers or other parties, SSS has no obligation to pursue legal action against any alleged infringer of any of your rights in and to any Content.
9.5. In the event SSS receives a complaint about your Content, SSS may suspend access to such Content and terminate your account.
10. REPRESENTATIONS AND WARRANTIES
10.1. You represent and warrant that:
10.1.1. you have the full right, power and authority to enter into this agreement and to fully perform all of your obligations hereunder;
10.1.2. you are under no legal disability or contractual restriction that prevents you from entering into this agreement;
10.1.3. you are at least 18 years of age;
10.1.4. the Content and all parts thereof are owned and/or controlled by you, unencumbered and original works and are capable of copyright protection in all countries where copyright or similar protection is available;
10.1.5. if the Content contains sound recordings, music and/or lyrics, you own or have acquired all rights to use such sound recordings, music and/or lyrics from the owner of the copyright in such sound recordings, music and/or lyrics.
10.1.6. if the Content consists in whole or in part of design elements, fonts, clipart, sprites, vectors, brush tools and the like that are included in design programs (e.g., Photoshop, Daz, Illustrator), the end user license agreement, terms of service or the equivalent license held by you permits you to incorporate such elements in Content created by you, and to license such Content to SSS for the purposes set forth herein.
10.1.7. the Content is neither obscene nor defamatory, does not violate any applicable laws and/or regulations, and does not infringe the copyright or any other rights of any third party, including, without limitation, trademark rights and the rights of privacy and publicity.
10.1.8. there is no suit action or claim or other legal or administrative proceeding now pending or threatened which might directly or indirectly affect the Content or which might in any way impair the rights granted by you hereunder; and
10.2. You will not transmit unsolicited emails or engage in so-called “spamming” to publicize or promote your relationship with SSS or the sale of your Content – nor will you falsely advertise or deceptively publicize your relationship with SSS in a manner that mischaracterizes or implies sponsorship, endorsement, employment or any other affiliation that exceeds the actual scope of your relationship to SSS, nor will you use SSS’s Trademarks through the use of search engine advertising and/or marketing.
10.3. You acknowledge that such advertising and/or marketing might infringe on the intellectual property rights of SSS and/or third parties. In addition to its other rights and/or remedies under the TOS, SSS shall be under no obligation to pay you any referral fees or other compensation if you violate the terms of this subparagraph.
10.4. You may not publicize your portfolio in a way that falsifies the nature of your relationship with SSS.
10.5. SSS represents and warrants that:
10.5.1. it has the power and authority to enter into this agreement and to fully perform all of its obligations hereunder; and
10.5.2. upon making or learning of any claim that is inconsistent with any of the warranties or representations made by you, SSS may send you written notice of such claim, using the email address provided by you to SSS, specifying the details of the claim as then known to SSS.
10.5.3. Pending the determination of such claim, SSS may withhold from royalties and/or other compensation due to you hereunder, such sums as are reasonably related to the probable value of the claim as determined by SSS.
10.5.4. You will cooperate fully with SSS in the defence of any such claims. You may participate in the defence of any claim through counsel of your selection at your own expense.
11. CONFIDENTIALITY
11.1. By submitting any Content to SSS, you acknowledge that you will acquire certain confidential and proprietary information, including but not limited to royalty rates, royalty payments and earnings data (collectively, “Confidential Information”). You agree to keep Confidential Information confidential and to not disclose Confidential Information to any third party other than representatives, agents, attorneys, accountants, auditors and advisors with a bona fide need to know, who shall first agree to keep the terms confidential.
11.2. Please do not disclose confidential information about your SSS account.
12. INDEMNIFICATION
12.1. You agree to indemnify and hold SSS, its subsidiaries, affiliates, directors, officers, and employees harmless from and against any and all claims, losses, damages, costs and expenses (including reasonable attorneys’ fees and disbursements) arising out of any breach or claimed breach of any of your representations or warranties or any of your obligations under the TOS. You will only be liable for any incidental, consequential, or special damages in the case of third party claims.
12.2. If SSS is the indemnifying party, it shall defend such claims, control litigation, and settle claims in its sole discretion. If a settlement creates a financial obligation for you, it shall require your written consent, which you will not unreasonably withhold or delay.
13. ARBITRATION
13.1. Should any dispute, disagreement or claim arise between the Parties concerning this Agreement (“the Dispute”) the Parties shall endeavour to resolve the Dispute by negotiation.
13.2. If the Dispute has not been resolved within 7 (seven) days, the said Dispute shall, on written demand by either Party, be submitted to arbitration in Cape Town in accordance with the Arbitration Foundation of Southern Africa (“AFSA”) rules, which arbitration shall be administered by AFSA.
13.3. Should AFSA, as an institution, not be operating at that time or not be accepting requests for arbitration for any reason, then the arbitration shall be conducted in accordance with the AFSA rules for commercial arbitration (as last applied by AFSA) before an arbitrator appointed by agreement between the Parties to the Dispute or failing agreement within 10 (ten) days of the demand for arbitration, then any Party to the Dispute shall be entitled to forthwith call upon the chairperson of the Cape Town Bar Council to nominate the arbitrator, provided that the person so nominated shall be an advocate of not less than 10 (ten) years’ standing as such. The person so nominated shall be the duly appointed arbitrator in respect of the Dispute. In the event of the attorneys of the Parties to the Dispute failing to agree on any matter relating to the administration of the arbitration, such matter shall be referred to and decided by the arbitrator whose decision shall be final and binding on the Parties to the dispute.
13.4. Any Party to the arbitration may appeal the decision of the arbitrator or arbitrations in terms of the AFSA rules for commercial arbitration.
13.5. Nothing herein contained shall be deemed to prevent or prohibit a Party to the arbitration from applying to the appropriate court for urgent relief.
13.6. Any arbitration (including any appeal proceedings) shall be conducted in camera and the Parties shall treat as confidential details of the Dispute submitted to arbitration, the conduct of the arbitration proceedings and the outcome of the arbitration.
13.7. The provisions of this clause will continue to be binding on the Parties notwithstanding any expiry or termination or cancellation of this TOS.
13.8. The Parties agree that the written demand by a Party that the Dispute be submitted to arbitration is to be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, 1969.
14. ELECTRONIC COMMUNICATIONS DELIVERY
14.1. You agree and consent to receive all communications, agreements, documents, notices and disclosures (collectively, “Communications”) that SSS provides in connection with your Content and your account. Communications include agreements and policies you agree to, updates to these agreements or policies, account statements, and any other information relating to your Content and your Account. SSS will provide Communications to you by posting them on the SSS website or by email at the primary email address on file in your SSS Contributor Account.
14.2. In order to access and retain electronic Communications, you will need a computer or mobile device with an Internet connection, a Current Version (as defined hereinafter) of a web browser; a current version of a program that accurately reads and displays PDF files; a valid email address (your email address on file with SSS in your Contributor Account); and sufficient storage space to save past Communications or an installed printer to print them. We will notify you if there are any material changes to the hardware or software needed to receive electronic Communications. “Current Version” refers to a version of the software that is currently being supported by its publisher. We reserve the right to discontinue support of a Current Version of software if, in our sole opinion, it suffers from a security flaw or other flaw that makes it unsuitable for use with SSS’s products and services.
14.3. By giving your consent you are confirming that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Communications for your records. You may print or save a copy of these Communications for your records as they may not be accessible online at a later date.
14.4. You may withdraw your consent to receive Communications electronically by writing to us. Your withdrawal of consent will become effective after we have had a reasonable opportunity to act upon it.
14.5. It is your responsibility to keep your primary email address up to date so that SSS can communicate with you electronically. You understand and agree that if SSS sends you an electronic Communication but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, SSS will be deemed to have provided the Communication to you.
15. GENERAL
15.1. The relationship of the parties is that of independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties.
15.2. The TOS contains the entire understanding of the parties with respect to the subject matter covered herein and supersede any prior agreements with respect to such subject matter.
15.3. The validity, interpretation and enforcement of the TOS, matters arising out of or related to the TOS or its making, performance or breach, and related matters shall be governed by the laws of the Republic of South Africa. Subject to the Arbitration Agreement above, any legal action or proceeding concerning the validity, interpretation and enforcement of the TOS, matters arising out of or related to this TOS or its making, performance or breach, or related matters shall be brought exclusively in the courts of the Republic of South Africa, and all parties consent to the exclusive jurisdiction of those courts, waiving any objection to the propriety or convenience of such venues.
15.4. If any individual term of the TOS is found to be invalid or unenforceable by any legal or regulatory body of competent jurisdiction, or arbitration as applicable, such finding will be limited solely to such invalid or unenforceable part, without affecting the remaining parts of such individual term, or any other part of the TOS, so that the TOS shall otherwise remain in full force and effect. The TOS shall be binding upon and shall inure to the benefit of each party and their respective legal representatives, successors in interest and permitted assigns.
15.5. SSS will not be liable for any damages, including actual, indirect, special, or consequential damages arising from the submission or use of your Content, either by SSS or any sublicensee thereof, or the termination of your Contributor Account. You expressly consent to all the potential uses of your content contemplated hereby, and have no right to demand any particularized compensation arising from any individual or aggregate usage.
15.6. Please note that SSS reserves the right to modify these terms at any time in its sole discretion, it being understood that no changes shall apply to any pending arbitration proceeding commenced or legal claims asserted prior to such change. SSS will notify you of any such change by an announcement on this page, your login page, and/or by other means to provide you the opportunity to review the modifications before they become effective. Modifications to these TOS will not apply retroactively. By continuing to make Content available through SSS, you agree to be bound by all such changes. If you do not agree with any of the changes, please remove from SSS, pursuant to the terms herein, all or that portion of your Content to which you do not wish the changes to apply.
15.7. In the event that you breach any of the terms of this or any other agreement with SSS, SSS shall have the right to terminate your account without further notice, in addition to SSS’s other rights at law and/or equity.
15.8. It is expressly understood and agreed that this TOS is entered into solely for the mutual benefit of the parties herein and that no benefits, rights, duties, or obligations are intended by this TOS as to third parties.
[SW1]TBC