Terms of service
1. SCOPE OF APPLICATION
These General Terms and Conditions ("GTC") of Fotografiska Emerging GmbH, Linienstrasse 127, 10115 Berlin ("Operator") govern the use of the Fotografiska Emerging platform ("Platform") by registered users ("User"). By registering for the Platform, the User accepts these GTC which shall form an integral part of the contractual relationship between the User and the Operator. Any other terms and conditions that deviate from, conflict with or supplement these GTC shall not apply, even if the Operator does not expressly object to their inclusion.
2. REGISTRATION AND CONCLUSION OF THE AGREEMENT
2.1 Registration
Only natural persons who are at least 18 years of age and are fully legally competent may register for the Platform.
The User undertakes to provide only truthful and up-to-date data during registration. Upon completion of the registration, the User shall be provided with a personal account.
Access to the account is enabled exclusively through third-party authentication services (e.g., Google or Apple sign-in) or a verification link sent to the User's registered email address ("Magic Link").
The User is responsible for maintaining the security of any third-party accounts used to access the Platform and for ensuring that only the User has access to the registered email address used for Magic Link authentication.
If there is reason to believe that unauthorized persons have gained access to the User's account or to any authentication method linked to it, the User must notify the Operator without undue delay by email at emerging@fotografiska.com and take all reasonable steps to secure the affected authentication method immediately.
2.2 Conclusion of Agreement
An agreement between User and Operator shall be concluded by the User completing the following steps:
- Complete and accurate completion of the registration form
- Acceptance of these GTC by ticking the designated checkbox
- Clicking the “Sign-up” button
2.3 Double-Opt-in Procedure
Following the registration, the User shall receive an email containing a confirmation link.
Registration shall only be deemed complete upon clicking the confirmation link, after which the User shall be entitled to use the Platform.
2.4 Consumer Protection
These GTC are available for viewing, downloading, and printing prior to the conclusion of the agreement at the top of the page.
The Operator shall store the text of these GTC and make it accessible to the User at:
http://emerging.fotografiska.com/terms
Mandatory consumer protection laws of the country in which the User has their habitual residence shall remain unaffected in respect of Users who qualify as consumers within the meaning of Section 13 of the German Civil Code (Bürgerliches Gesetzbuch, BGB).
3. SCOPE OF SERVICE
3.1 Provision Free of Charge
The Platform is provided by the Operator free of charge.
3.2 Availability and Maintenance
The User must ensure that he/she has a sufficient internet connection to use the Platform. The User shall also be responsible for ensuring compliance with the system requirements necessary for the use of the Platform, particularly regarding the operating system and web browser used.
The Operator provides the Platform on an "as is" basis and shall endeavor to ensure the highest possible availability. The Operator reserves the right to restrict access to the Platform or the possibility of its use, temporarily, in whole or in part, where this is necessary due to capacity limitations, the security or integrity of the servers, or the implementation of technical measures aimed at ensuring the proper provision or improvement of the service (e.g. for maintenance work).
3.3 No Obligation to Provide Updates or Upgrades
The Operator shall be under no obligation to provide updates or upgrades for the Platform or to otherwise adapt the Platform to any changes in the User's hardware and/or software (in particular the operating systems).
3.4 User Account
Each User shall have an account on the Platform ("User Account"). For this purpose, the User must register on the Platform.
As part of the registration process, the User must provide the information that is marked as mandatory information / required fields (e.g., name and email address). This information is necessary for the creation and administration of the User Account. Without this information, registration cannot be completed.
All other information the User may provide is voluntary.
3.5 Photos
The User may upload photos to his/her User Account ("Photo" or "Photos").
Uploading Photos is subject to the following conditions:
- The User must be the sole holder of the rights necessary in respect of the Photos, in particular:
- Copyright in the photo as its author or photographer
- The right to distribute and publish photos depicting natural persons
- Rights in respect of any depicted objects or trademarks
3.5.1 Private Profile
By default, the User Account, the information contained therein, and Photos that have been uploaded therein may only be accessed and viewed by the respective User and the Operator.
3.5.2 Public Profile
The User may decide that his/her User Account and Photos that have been uploaded therein become available to other Users and visitors of the Platform ("Public Profile").
3.5.3 Setting up the Public Profile
For this purpose, the User must set up a profile and provide the information that is marked as mandatory information / required fields (e.g. social media accounts or website, country of residence, short biography) accurately and completely.
This information is necessary for the creation and administration of a Public Profile. Without this information, the Operator will not approve the profile of the User as a Public Profile.
All other information the User may provide is voluntary.
3.5.4 Required Photo Upload for the Public Profile
Furthermore, the User must upload at least five (5) Photos, which must not exceed a maximum size of 5 MB.
In addition, a title, the year of creation, and a brief description must be provided for each Photo.
3.5.5 Verification and Approval of the Operator
The publication of the Public Profile is subject to prior verification and approval of the Operator, which shall be based on compliance with these GTC as well as artistic and creative merit (e.g., genuine effort to explore photography, artistic expression, openness over perfection, inclusive approach, no genre gatekeeping).
3.5.6 Information
The Operator shall inform the User if his/her Public Profile was verified and approved and generate a Public Profile URL for Users whose Public Profiles have been verified and approved.
4. RESTRICTIONS ON UPLOADED CONTENT
4.1 Prohibited Content
The User must not upload photos or content that violate applicable law, infringe the rights of third parties, contain malware (e.g. viruses, Trojans, spyware), or constitute or contain hate speech, discriminatory, obscene, immoral, violent, degrading, inhuman, pornographic, or sexually explicit material.
4.2 Notification Obligations of the Operator
If the Operator becomes aware of any information or content giving rise to a suspicion that a criminal offence involving a threat to the life or safety of one or more persons has been committed, is being committed, or is likely to be committed, the Operator shall promptly inform the competent law enforcement or judicial authorities of such suspicion and provide all relevant information available to it.
5. CONTENT MODERATION AND INTERNAL COMPLAINT-HANDLING SYSTEM
5.1 Content Moderation Measures
Where Photos or content do not comply with the requirements set out in these GTC, in particular those pursuant to Section to 4.1, the Operator may, at its sole discretion and in accordance with applicable law, take appropriate moderation measures. Such measures may include the removal of the relevant Photo and/or content, the restriction of its visibility, or the blocking of access thereto. The Operator may further suspend or terminate the provision of the service to the User, in whole or in part, or suspend or permanently close the User’s Account, depending on the nature and severity of the violation.
5.2 Statement of Reasons
If the Operator adopts any moderation measure against a User, the Operator shall provide the affected User with a statement of reasons. Such statement shall set out the decision taken and the specific measure applied, the relevant facts and circumstances underlying the decision, including how the Operator became aware of them, and the legal or contractual basis on which the decision is founded. The statement shall further indicate whether automated means were used in reaching the decision, specify the duration of the measure where applicable, and inform the User of the available means by which he/she may challenge or seek redress against the decision.
5.3 Internal Complaint-Handling Procedure
Users have the right to submit a complaint against any moderation decision taken by the Operator within a reasonable period, which shall be no shorter than six (6) months from the date on which the User became aware of the decision. The Operator will review such complaints internally in a timely, objective, and non-discriminatory manner and will inform the User of the outcome of such review.
5.4 Out-of-Court Dispute Resolution and Judicial Remedies
Where a User disagrees with a decision issued following the Operator’s internal complaint-handling process, in particular with regard to content moderation, account restrictions, or comparable measures, the User may, subject to applicable law, have the right to refer the dispute to a certified out-of-court dispute settlement body. Where required by law, the Operator shall participate in such proceedings in good faith. Recourse to out-of-court dispute settlement mechanisms shall be without prejudice to the User’s right to bring claims before a competent court.
6. USAGE RIGHTS FOR UPLOADED PHOTOS
The User grants to the Operator a non-exclusive, irrevocable, worldwide right to use the Photos for the purpose of performing the service as Operator pursuant to these GTC, in particular, but not limited to, the right to reproduce, store and make publicly available the Photos and other content. This right shall be sublicensable to sub-contractors engaged in the performance of the services agreed under these GTC.
7. LIABILITY
7.1 Limitations of Liability
The Operator shall not be liable for (a) technical problems during Photo upload caused by internet connection disruptions, server failures, or maintenance not within the Operator’s control, (b) loss of data during transmission due to technical issues not attributable to the Operator, and / or (c) unauthorized access by third parties to submitted photos, provided that the Operator has implemented reasonable security measures.
7.2 No Liability for Force Majeure
The Operator shall not be liable for damages caused by force majeure, including, but not limited to, natural disasters, war, terrorist attacks, strikes, or official orders.
7.3 Exceptions to Liability Limitations
The above liability limitations do not apply (a) for damages arising from injury to life, body, or health, (b) for damages resulting from intentional or grossly negligent breaches of duty by the Operator, its legal representatives, or agents, (c) for damages resulting from the breach of essential contractual obligations (cardinal obligations) where the achievement of the contract purpose is endangered; in this case, liability is limited to the typical, foreseeable damage, and/or (d) for claims under the German Product Liability Act (Produkthaftungsgesetz).
8. TERM AND TERMINATION
8.1
The contract between Operator and User is concluded for an indefinite period.
8.2
The User may terminate the contract at any time without notice by deleting the User Account.
8.3
The Operator may terminate the contract at any time subject to a notice period of one month. The Operator's right of termination for good cause without notice shall remain unaffected. Good cause shall be deemed to exist, in particular, where the User materially breaches these GTC.
8.4
Upon termination, the material and Photos uploaded by the User shall be deleted by the Operator, unless the Operator is legally obliged to continue storing such material or has a legitimate interest its retention.
9. DATA PROTECTION
Personal data of Users is processed in accordance with the Platform Privacy Notice provided separately, available at http://emerging.fotografiska.com/privacy-policy.
10. AMENDMENT OF THE GTC AND SERVICE
10.1
The Operator reserves the right to amend these GTC at any time and without giving reasons, provided that such amendment is not unreasonable for the User. The Operator shall notify the User of any amendments to these GTC within a reasonable period. If the User does not object to the applicability of the amended GTC within four (4) weeks after notification, the amended GTC shall be deemed accepted by the User. The Operator shall draw the User's attention to the right to object and the significance of the objection period in the notification. If the User objects, the User's entitlement to use the Platform shall cease and the Operator shall be entitled to delete the User Account and any data, photos and content uploaded by the relevant User.
10.2
The Operator reserves the right to change the Platform and the services provided in connection with the Platform, unless this is unreasonable for the User. In particular, the Operator may adapt the Platform and the scope of services to the relevant state of the art or extend it.
11. FINAL PROVISIONS
11.1
Changes and additions to this GTC must be made in text form. This also applies to amendments to this text form clause itself.
11.2
If individual provisions of this GTC are or become invalid, the validity of the remaining provisions in this GTC remains unaffected. The invalid provision shall be replaced by a valid one that best achieves the economic purpose of the invalid provision.
11.3
German law applies. For Users who qualify as consumers within the meaning of Section 13 BGB, mandatory consumer protection provisions of the country in which the User has their habitual residence remain unaffected. For Users residing abroad, German law applies unless mandatory international regulations or mandatory laws of the User’s country of habitual residence override it.
11.4
The place of jurisdiction for all disputes arising out of this Contract is Berlin, pro-vided the User is not a consumer. For consumers, the statutory provisions apply.