These General Terms and Conditions apply to the use of the www.whereaboutonline.com website (including sub-domains of www.whereaboutonline.com). www.whereaboutonline.com is a website belonging to WHEREABOUT-ONLINE GmbH, Engelberg, Switzerland, which makes it possible for interested individuals and companies anywhere in the world to get in touch with photographers and to arrange work with them. The use of www.whereaboutonline.com and registration with it are subject to acceptance of the following General Terms and Conditions (hereinafter referred to as "GTCs"). www.whereaboutonline.com's “data-protection policy” (hereinafter referred to as "data-protection policy") constitutes an integral part of these GTCs.
WHEREABOUT-ONLINE GmbH, Engelberg, Switzerland (hereinafter referred to as the “operator”) operates the www.whereaboutonline.com services under various top-level domains as well as various sub-domains and aliases of these domains. The term “website” as used in these GTCs refers to the totality of the web pages on which the operator makes available the www.whereaboutonline.com services. The operator is the owner of the website. The operator's postal address is to be found on the website.
The term "photographer" as used in these GTCs refers to any natural or legal person who has paid a fee to register with www.whereaboutonline.com and who offers photographic services and products to third parties. The term "agent" as used in these GTCs refers to any natural or legal person who acts as an intermediary in the conclusion of contracts on behalf of one or more photographers. The term "editor" as used in these GTCs refers to any natural or legal person who accesses any of the website’s contents and services that are subject to compulsory registration and thereby enters into contact with photographers or agents.
Any photographer, agent or editor who does not accept the following terms and conditions must refrain from using the website.
The website provides a contact platform for registered photographers, agents and editors.
Using the website’s services does not impose any form of duty on photographers, agents or editors to agree to work with one another and to conclude a contract to that end.
The photographer, agent and editor recognise that a 100% availability of the website is not technically feasible. The operator shall, however, put in every reasonable effort to ensure that the website is kept available as constantly as possible. It is possible for the website to be subject to short-lived disruptions or the provisional non-availability of its services for reasons associated with maintenance, security or capacity as well as events beyond the control of the operator (such as disruptions to public communication networks and power failures).
Any photographer or agent wishing to make use of the website’s services must be registered with it. Upon registration, the photographer and agent will each have a personal, password-protected account opened for them. It is permissible for the photographer to grant authorisation to the agent to access their account.
The photographer or agent gives a formal undertaking that all the data supplied in their registration is true and complete. The photographer or agent alone bears full responsibility for the contents of the registration and thus for the information they supply about themselves. Should the personal data supplied in the registration (such as last name, first name and e-mail address) be untruthful or incomplete, the operator shall have the right to exclude the photographer or agent from use of the website without any prior notice.
When registering, the photographer or agent chooses a password. The photographer or agent has the duty to keep their password secret. The operator saves the password in an encoded form.
The completion of the registration process by the photographer or agent constitutes the submission of an offer to conclude the contract regarding the use of the website's services. The operator accepts this offer by connecting up the website's services for use by the photographer or agent. It is with this acceptance that the contract between the photographer or agent and the operator comes into being.
It is not permitted for any photographer or agent to register more than once or to create more than one profile. A registration fee is charged to the photographer, but not on the agent. The annual membership fees applicable at any time can be found on the website.
The operator has no absolutely certain technical means available to it for ascertaining whether or not the photographer or agent registered with the website really are the photographer or agent they are claiming to be. For that reason, the operator provides no guarantee as regards the actual identity of a photographer or agent.
The photographer or agent has a duty to supply only information that is true and not in any way misleading, particularly as regards their person and their professional activity.
The photographer or agent has a duty to upload to the website all the contents (photographs, personal particulars, etc.) to which they hold the rights. In so doing, the photographer or agent gives a guarantee that the public reproduction of the contents they have uploaded to the website is permitted. It is not permitted to upload any contents that infringe the personal rights, trademark rights, copyright or any other rights of third parties (natural or legal persons). The contents uploaded by the photographer or agent must not contain, in particular, any officially protected or registered logos.
The photographer or agent has a duty when using the website’s contents and services to abide by the applicable law and to respect all the rights of third parties. The photographer or agent is prohibited, in particular, from exploiting or uploading offensive or libellous contents, from exploiting pornographic or racist contents or any contents contrary to the laws on the protection of children and young persons as well as from advertising, offering or marketing products of that nature, from pestering third parties to an intolerable extent (in particular through spam), from exploiting any contents protected by law (such as copyright, trademark or patent law) unless they are authorised so to do, from advertising, offering or distributing any goods or services protected by law and from indulging in or encouraging any anti-competitive activities, including the progressive canvassing of customers (such as through chainmail, snowball or pyramid systems).
Any editor wishing to exploit the website’s services must be registered with it. Upon registration, the operator opens a personal, password-protected account for the editor.
The editor gives a formal undertaking that all the data supplied in their registration is true and complete. The editor alone is responsible for the contents of their registration. If the data supplied in the registration (such as last name or e-mail address) is not truthful or complete, the operator shall have the right to exclude the editor from using the website without prior notice.
When registering, the editor chooses a password. It is the editor’s duty to keep their password secret. The operator saves the password in an encoded form.
The completion of the registration process by the editor constitutes the submission of an offer to conclude the contract regarding the use of the website’s services. The operator accepts this offer by connecting the website’s services up for use by the editor. It is through this acceptance that the contract between the editor and the operator comes into being.
No registration fee is charged to the editor.
The operator has no absolutely certain technical means available to it for ascertaining whether or not the editor registered with the website really is the editor they are claiming to be. For that reason, the operator provides no guarantee as regards the actual identity of an editor.
The editor has a duty to supply only information that is true and not in any way misleading as regards their identity.
In using the website’s contents and services, the editor has a duty to abide by the law and to respect all the rights of third parties.
The operator maintains the right to modify the services offered on the website and/or to offer services with differences at any time without prior notice.
For the photographer, membership starts when their registration is connected up and terminates at the end of one year. Membership is extended automatically, provided the photographer declares their willingness to pay the annual membership fee (there is no arrangement for the automatic debiting of credit cards). The photographer has the right to terminate their registration at any time without indicating any reasons. If termination occurs before the end of a calendar year following the connecting up of their registration, the photographer has no right to claim a full or partial refund of the annual membership fee for that year. The photographer terminates the contract by deleting their personal profile. Deletion of the profile has the effect of irretrievably removing all of the photographer’s data from the website.
For the agent, membership starts when their registration is connected up and lasts until it is cancelled by the operator. The agent has the right to terminate their registration at any time without indicating any reasons. The agent terminates the contract by deleting their personal profile. Deletion of the profile has the effect of irretrievably removing all of the agent’s data from the website.
For the editor, membership starts when their registration is connected up and lasts until it is cancelled by the operator. The editor has the right to terminate their registration at any time without indicating any reasons. The editor terminates the contract by deleting their personal profile. Deletion of the profile has the effect of irretrievably removing all of the editor’s data from the website.
The operator has the right at any time to cancel the registration of a photographer, agent or editor with immediate effect and thereby to exclude them from using the website. Moreover, the operator will exclude the photographer, agent or editor from using the website if there are significant grounds for so doing. Significant grounds include, in particular, the following occurrences:
- failure by the photographer, agent or editor to comply with legal provisions;
- breach of these GTCs by the photographer, agent or editor;
- harm to the reputation of the services offered on the website by the presence of the photographer, agent or editor; or
- harm to one or more other users of the website or their reputation caused by the photographer, agent or editor.
If significant grounds as defined in paragraph 8.4 exist, the operator shall have the right to impose one or several or all of the following sanctions on the photographer, agent or editor:
- deletion of contents published by the photographer or agent;
- blocking access to the website’s services;
- suing for compensation.
The operator does not assume any responsibility whatsoever for the contents, data and information provided on the website by the photographer or agent nor for the contents of any external website to which links have been set up. In particular, the operator does not provide any guarantee that such contents are true, that they satisfy a particular purpose or that they might be suitable for such a purpose.
If the photographer, agent or editor notices that the website is being used in a manner that is illegal or in breach of the contract, they have the right to report this to the operator.
The operator declines all liability for any economic, bodily or immaterial harm that may result from using the website.
The website contains links to other web pages and integrates contents belonging to third parties directly on the website itself. The use of these external contents is subject solely to the terms and conditions of the external provider concerned. The operator does not accept any liability for facilitating access to external contents nor for any consequential harm that may arise.
The information published on the website may be subject to change at any time. The operator does not assume any form of liability whatsoever for its correctness. Under no circumstances can the operator be held responsible for data being lost, deleted or incorrectly transmitted in the context of the services provided. The operator accepts no responsibility for the correctness and the contents of the particulars and data of the registered photographer, agent or editor or for any other contents generated by the photographer, agent and editor. The operator declines all liability for the possible misuse of information.
The operator maintains the right – but does not enter into any corresponding duty – to inspect all the contents uploaded to the website by the photographer, agent or editor in terms of their conformity with the law and, if necessary, to modify or delete them.
The operator shall make every reasonable effort to ensure the correct operation of the website at all times, but does not provide any guarantee that the website will be usable or accessible without interruption and cannot be held liable for any delays or failures in transmission for which there are technical causes.
The operator cannot be held liable for third parties obtaining unauthorised knowledge of personal data (for instance in the event of hackers obtaining unauthorised access to the database). Nor can the operator be held liable if particulars and information which the photographer, agent or editor have themselves made accessible to third parties are subsequently misused by the latter.
The operator has the right at any time to transfer the provision of the website’s services in whole or in part to third parties, either indicating the reasons for so doing or not.
The photographer, agent or editor agrees to indemnify the operator to the full for any claims, including compensation claims, that may be filed by third parties against the operator on account of any infringement of their rights by contents uploaded to the website by the photographer, agent or editor or through the use of the website by the photographer, agent or editor.
The photographer, agent or editor shall reimburse the operator any costs incurred through any infringement of the rights of third parties, including the costs of legal defence. This shall be expressly without prejudice to any further-reaching claims for compensation that may be made by the operator.
The duties upon the photographer, agent or editor referred to above, shall not apply if the photographer, agent or editor is not accountable for the infringement of the law.
If the rights of third parties are infringed by the use of the website’s services by the photographer, agent or editor, the photographer, agent or editor shall immediately desist from using the website in an illegal manner or in breach of the contract when called upon so to do by the operator.
The operator is aware that the photographer, agent and editor attach importance to particularly sensitive handling of any data of a personal nature that they may supply to the website. The operator complies with all relevant legal provisions regarding data protection.
The details of how data of a personal nature is handled are stated in the operator’s data-protection policy.
All the information and contents that can be called from the website are subject to copyright protection. Any use of the contents going beyond the use envisaged in the context of the website is only permitted with the explicit agreement of the operator. For all contents (including software) that are expressly made available for downloading, a simple, non-exclusive, non-transferable licence is issued and is restricted to a once-only operation of downloading and saving. All further-reaching rights are retained by the operator.
In uploading photographs, the photographer or agent grants the operator a limited, revocable and non-transferable right to use them for publication on the website. The operator is not permitted to process the photographs in any way (with the exception of scaling them). The photographer or agent retains the right to dispose freely of their photographs and, in particular, to publish these in other media or on other websites.
The editor permits the operator to use the name of their company in its external communication (so-called “name dropping”, such as by including the company name in a list of members). If the operator is interested in using company logos, trademarks or the like, it agrees to contact the editor in advance to arrange for permission.
The operator retains the right to amend these GTCs at any time without stating reasons. The operator will, however, inform the photographer, agent or editor in adequate time of any amendment to the GTCs.
The photographer, agent or editor has the right to contact the operator by e-mail at any time. The operator sends any messages intended for the photographer, agent or editor to the e-mail address that each of these has supplied in their registration.
Should individual provisions within these GTCs be without legal effect or lose their legal effect, the effectiveness of the other provisions shall not be affected. The contracting parties accept the commitment to replace a legally ineffective provision with an effective one, which in its substance comes as close as possible to the economic intention of the ineffective provision. The same shall apply mutatis mutandis to any gaps in the contract.
These GTCs are subject to Swiss substantive law. Jurisdiction shall lie with the courts of the operator’s registered seat.
WHEREABOUT-ONLINE GmbH, March 2010