Terms of use for Share the Light platform

1. TERMS OF USE - GENERAL

The following terms and conditions, including its schedule, (collectively these "Terms of Use"), constitute the agreement between you, duly acting on behalf of a corporation or other legal entity (the “Company”), and Profoto AB (“Profoto”, “us” or “we”). The Terms of Use apply to your access and use of the Share the Light platform, including all associated features and functionalities, accessed through websites or other user interfaces (collectively the “Platform”). By clicking the “Confirm” button, you acknowledge your full understanding of and agree to be legally bound by these Terms of Use. In these Terms of Use “you” includes both you individually and the Company.
When you access and use the Platform, we collect and process personal data from you. All processing of personal data is carried out in accordance with our Privacy Policy https://profoto.com/privacy-policy
The Platform also uses cookies. The use of cookies is carried out in accordance with our Cookie Policy https://profoto.com/cookies.
Profoto reserves the right to, at any time change or update these Terms of Use by providing you with an updated version of these Terms of Use. If you do not accept the updated Terms of Use you have the right to immediately terminate these Terms of Use and cease your use of the Platform.

2. PROVISION OF SHARE THE LIGHT

Subject to your use of the Platform in accordance with these Terms of Use, Profoto will provide the Platform to you, and use commercially reasonable efforts to make the Platform available to you without interruptions.
Profoto will strive to ensure that the Platform will be available, accessible and reliable and that the Platform will provide for sufficient protection of your integrity. However, to the extent not prohibited by law, we shall not be held liable if the Platform should be unavailable, inaccessible or interrupted, and you will not be entitled to any kind of compensation for any downtime of the Platform or any security or integrity violations or breaches that may occur from time to time on the Platform.
Profoto reserves the right to, at any time and in its own discretion, modify, update or upgrade, either temporarily or permanently, the Platform (or any part thereof).
In order to use the Platform, you must, apart from meeting basic functional requirements for access to and use of web-based content, have or obtain access to the World Wide Web, either directly or through devices that can access web-based content. For the avoidance of doubt, you are responsible for your own bandwidth and adequate internet connection.

3. USE OF SHARE THE LIGHT

Account, password and secrecy

1. In order to be able to upload any content on the Platform you must create a personal account. You are entirely responsible for providing correct and up to date information and for maintaining confidentiality of the information you hold for your account. You may only use your own account and password and you undertake to notify Profoto of any unauthorized use of your account or password.
2. You must be at least 18 years old (or of legal age) to register an account and use the Platform.
User conduct

1. You are responsible for all activity that occurs under your account and for all activities taken while using the Platform.
2. You hereby represent and warrant that you:
  1. own the copyright to any content posted by you on the Platform and that your use of the Platform does not violate the intellectual property rights or any other rights of any person;
  2. acknowledge and agree that Profoto places advertising on the Platform in conjunction with your content;
  3. consent to Profoto using your name and image in Profoto’s marketing activities, without any remuneration from Profoto in respect of such use;
  4. obtain and maintain during the term of these Terms of Use all necessary consents required to use the name and image of any person depicted or mentioned by you on the Platform in Profoto’s or any other party’s marketing activities, without any remuneration from Profoto in respect for such use;
  5. obtain and maintain during the term of these Terms of Use all necessary consents and have provided the necessary information (in line with Profoto’s privacy policy) required in accordance with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (“General Data Protection Regulation”) to use any personal information of any person depicted or mentioned by you on the Platform in accordance with what is set out in these Terms of Use;
  6. obtain and maintain during the term of these Terms of Use all necessary consents from relevant custodians to use the name and image and any other personal information of any child depicted or mentioned by you on the Platform;
  7. that the execution of these Terms of Use has been duly authorized and thus constitutes a valid and binding obligation enforceable also against the corporation or other legal entity you represent;
  8. use all reasonable efforts to prevent unauthorised access to, or use of, the Platform and notify Profoto promptly of any known or anticipated unauthorised access or use;
  9. shall formulate and present all marketing conducted by you in such a way that it clearly states that marketing is involved and who is responsible for such marketing; and
  10. acknowledge and agree that you are fully responsible for any marketing of third party products that you conduct on the Platform.
  11. upload images created using Profoto product(s) as the only brand of flash and/or light modifiers.
3. You agree not to use the Platform:
  1. to post any images showing weapons, drugs, blood, tobacco, alcohol, offensive tattoos, religious or political symbols, nudity, violence, or in other ways offensive content;
  2. Share the Light is a positive space for all, and many are still learning how to use light, which is why we strive to be on the safe side when reviewing images. Regardless of the identity of depicted subjects, images that show subjects in provocative poses such as leg spreading, barely dressed subjects without further/justifying context, or that could be construed as objectifying ,will be denied.
  3. to post any content that you not have the right to post or use;
  4. to transmit any unsolicited or unauthorized content, including but not limited to, junk mail, spam and chain letters;
  5. in any unlawful manner, for any unlawful or criminal purpose, in any manner inconsistent with these Terms of Use, including but not limited posts that could amount to unlawful threats, unlawful violation of integrity, inciting rebellion, agitation against a national or ethnic group, child pornography, unlawful depiction of violence, or public provocation, or in any other manner create damage or inconvenience to any third party;
  6. in a way that conflicts applicable laws or regulations, including but not limited to laws on intellectual property rights;
  7. in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users, or restrict or inhibit any other users from using the Platform (including by hacking the Platform); or
  8. in a way resulting in the Platform being damaged, disabled, disrupted or in any other way impaired and that viruses, worms, malware, spyware, Trojan horses or other malicious code or programs that may damage the operation are introduced in the Platform.
4. In addition to any other user restrictions as provided for under these Terms of Use and except as expressly permitted under these Terms of Use, you shall not:
  1. copy, reproduce, republish, reuse, upload, post, transmit or distribute any content presented in or provided by the Platform, including without limitation for public or commercial purposes;
  2. rent, lease, sub-license, loan, distribute or sell/re-sell or exploit the Platform (including source code);
  3. remove any copyright, trademark or other proprietary rights notices from the Platform; or
  4. (i) make alterations to, or modifications of the whole or any part of the Platform, or (ii) disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Platform.
5. Profoto’s right to remove, block or suspend an account and edit or remove content
  1. We protect the security of our user accounts, our ligthing challenges, and product prizes and see Share the Light as a space where photographers can trust each other and the community they interact with. We do not allow people to misrepresent themselves on Share the Light, use fake accounts, artificially boost the views and votes of their uploads or engage in other behaviors meant to enable other violations or manipulation of our community standards and lighting challenges.
  2. If Profoto has reasonable grounds to believe that you are using the Platform in breach of these Terms of Use, Profoto shall have the right (but not the obligation) to immediately and without prior notice block your account and/or access to the Platform in its entirety. Similarly, Profoto shall also have the right (but not the obligation) to block your account and/or access to the Platform in its entirety if Profoto has reasonable grounds to believe that you are acting in a manner that may cause damage to Profoto or any third party (including in case of repeated login failures or in case Profoto suspects an unauthorised use of the Platform).
  3. Profoto further reserves the right to remove any content from the Platform or edit the content, if mistakes were made, such as tagging Profoto products by correcting falsely tagged products and adding missing ones; correcting the spelling of product names or similar.
6. Share the Light point system
  1. As a user of the Platform, you may collect points which can be exchanged for certain products. Further information regarding the point system is provided on the Platform, including how you can gather points and under which conditions points can be exchanged for products and the rules for the point system.
  2. Profoto reserves the right to remove collected points, uploaded photos connected to collected points and exclude you from collecting points if Profoto has reasonable grounds to believe that you are using the point system in breach of the rules of the point system or otherwise suspects manipulation or misuse of the point system.
  3. The collected points may only be redeemed for products specified by Profoto and under the conditions decided by Profoto from time to time and communicated on the Platform. The products offered to be exchanged for point are subject to availability and limitations as regard the period the product is offered. If any products are out of stock Profoto may in its sole discretion offer another product. Collected points cannot be exchanged for cash. Products exchanged for collected points are non-refundable.
  4. Profoto further reserves the right to discontinue the point system at any time in its sole discretion. Any and all collected points will then be invalid immediately and without further notice.

4. INTELLECTUAL PROPERTY RIGHTS

Each party’s intellectual property rights shall remain the property of the respective party and the other party shall have no right to nor interest therein. Nothing in these Terms of Use constitutes a transfer, assignment or grant of any ownership rights in any intellectual property rights.
You hereby grant Profoto a worldwide, non-exclusive, non-transferrable, non-sublicensable and non-assignable right to make any content you upload available on the Platform during the term of these Terms of Use.
By entering into these Terms of Use, you receive a non-exclusive, non-transferrable, non-sub-licensable and non-assignable right to access and use the Platform during the term of these Terms of Use.

5. WARRANTIES AND DISCLAIMERS

You hereby expressly acknowledge and agree that the Platform is provided on an “as is” basis. We hereby disclaim any representations or warranties of any kind, express or implied, including without limitation, warranties of satisfactory quality, accessibility or fitness for a particular purpose and non-infringement of third party rights.
By using the Platform you agree to indemnify, defend and hold Profoto harmless from all damages, costs and expenses arising out of any claims for infringement of intellectual property rights, unfair marketing practices or otherwise relating to any materials submitted by you to the extent permitted by law.

6. LIMITATION OF LIABILITY

To the extent not prohibited by law, in no event shall we be liable for any direct, indirect, consequential, punitive, special or incidental damages (including without limitation, damages for loss of data, personal injury, information or business interruption) resulting from, arising out of or in connection with the use of, or inability to use, the Platform. In addition to the terms set forth herein, in no event shall we be liable for any errors, inaccuracies, omissions or other defects on the Platform.
If your account on the Platform is not used in accordance with the provisions in these Terms of Use you may be held liable for any damage this may cause. Profoto takes no responsibility whatsoever for any content you upload to the Platform, and Profoto cannot be held liable for any damage arising from your failure to comply with these Terms of Use.

7. TERMINATION

The Terms of Use will continue to apply to your use of the Platform until terminated by either Profoto or you. You may terminate your use of the Platform by terminating your account, including but not limited to as a result of Profoto updating these Terms of Use in accordance with what is set out in Section 1.3. Profoto may terminate or suspend your access to the Platform with immediate effect and at any time without prior notice, without incurring any liability whatsoever.
Following the termination of the Terms of Use, howsoever occasioned, all rights granted to you in relation to the Platform will immediately cease and you shall stop using the Platform.

8. MISCELLANEOUS

If any of the provisions in the Terms of Use are found to be unenforceable under applicable law, that shall have no bearing on the enforceability of the rest of the Terms of Use. The failure of Profoto to exercise or enforce any right of the Terms of Use shall not constitute a waiver of such right.
You may not, wholly or partly, assign, pledge or otherwise dispose of your rights and/or obligations under these Terms of Use without Profoto’s prior written consent.
Your use of the Platform through mobile applications might require you to accept third party terms and conditions pertaining to your use of such third party’s services (such as an app store). Profoto is not part of any separate agreement between you and any such third party and hereby disclaims any responsibility in relation to such third party services, including the availability thereof.
The parties acknowledge and agree that these Terms of Use comprises the processing of personal data by the parties as joint data controllers. To ensure the secure, correct and lawful processing of the personal data under these Terms of Use and to determine the parties’ respective obligations for the data processing, the parties have agreed on the terms and conditions of a joint controllership set forth in Schedule 1.
Profoto reserves the right to make spot checks to ensure compliance with these Terms of Use. If you are selected for a spot check, you undertake to provide Profoto with e.g. proof that consent has been obtained in accordance with section 3.2.2.5 above.

9. GOVERNING LAW AND DISPUTE RESOLUTION

These Terms of Use shall be governed by the laws of Sweden without regard to its conflict of laws principles.
Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”).
The Arbitration Rules by the SCC shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that Rules for Expedited Arbitrations shall apply. In the former case, the Arbitral Tribunal shall be composed of three arbitrators. The seat of arbitration shall be Stockholm. The language to be used in the arbitral proceedings shall be Swedish.

10. CONTACT

If you have any questions or concerns regarding the Platform or these Terms of Use, you may contact us by using the below contact information:

Email: info@profoto.com

JOINT CONTROLLER AGREEMENT

1. DEFINITIONS AND CONSTRUCTION

Definitions

For the purpose of this JCA the following terms shall have the meanings assigned to them below. Any capitalized terms used, but not specifically defined below in this Section 1.1, shall have the meaning ascribed to them in the Terms of Use. Non-capitalised terms and expressions used in this JCA, e.g. ‘data subject’, ‘controller’, ‘personal data’, ‘processing’, ‘processor’, ‘personal data breach’, etc., shall be construed in accordance with the meaning ascribed to them in the GDPR.

“Data Protection Laws” means all applicable laws relating to privacy and the protection and processing of personal data in each relevant jurisdiction, however at all times including the GDPR (and any supplementing laws in each jurisdiction). In case of discrepancies or contradictions between different rules or regulations, the one which provides the highest degree of privacy and/or information security shall apply;

“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing the Directive 95/46/EC (General Data Protection Regulation), and any amending or replacement legislation from time to time thereto;

“JCA” means this joint controllership agreement;

“Party”/“Parties” means Profoto and you, separately or jointly, as the case may be; and

“Supervisory Authority” means any court, regulatory agency or authority which, according to applicable laws and/or regulations (including the Data Protection Laws), supervises privacy issues and/or the processing of personal data.

2. SCOPE OF THE AGREEMENT

The Parties’ purposes and means of processing of personal data uploaded by you on the Platform, including but not limited to your name and image as well as any name and image of any person depicted or mentioned by you in relation to such uploaded material, are inextricably linked, as the processing would not be possible without the other Party’s participation. Hence, Profoto and you shall be considered as joint controllers when processing such personal data. Processing activities where the Parties act as independent controllers are out of scope of this JCA.

3. UNDERTAKINGS

Each Party hereby undertakes to:

1. comply with the Data Protection Laws when processing personal data under this JCA;
2. give the other Party access to all written documentation regarding technical and organisational security measures, and to provide assistance so that the other Party can fulfil its responsibilities pursuant to the Data Protection Laws;
3. protect the personal data processed and maintain confidentiality of such personal data that is not intended to become public within the framework of the Platform;
4. ensure that its employees and others to whom personal data is disclosed are aware of the confidentiality obligations and of the obligations under the Data Protection Laws and agree to take any appropriate actions to ensure that these obligations are fully satisfied;
5. to the extent permitted by the Data Protection Laws, deal promptly and in good faith with all reasonable and relevant enquires from the other Party relating to its processing of personal data under this JCA; and
6. notify the other Party immediately if it becomes aware of, or suspects:
  1. errors or irregularities in processing of personal data in scope of this JCA;
  2. any breach of this JCA or of applicable Data Protection Laws (in particular the GDPR); or
  3. a personal data breach, in accordance with Section 7 below.
7. You undertake to obtain all necessary consents in accordance with article 6(1)(a) of the GDPR on behalf of both Profoto and yourself.

4. FULFILLING DATA SUBJECT’S RIGHTS

Each Party is obliged to ensure compliance with data subjects’ rights under the Data Protection Laws. Data subjects may exercise their rights in relation to either of the Parties, and the Parties agree to provide each other the necessary assistance for fulfilling such requests. The data subjects’ rights include the right to:
1. get access to the personal data and be provided with a copy of the personal data being processed;
2. have the personal data transferred to another controller upon request;
3. have the personal data corrected, erased or limited; and
4. object to the processing of personal data.
You undertake to fulfil the data subjects’ right to information in accordance with the Data Protection Laws. This includes, in addition to providing the data subjects with your own privacy policy, to inform the data subjects that Profoto is a joint controller for the processing conducted under this JCA, and that the information required under article 13 of the GDPR can be found in Profoto’s privacy.

5. TRANSPARENCY DUTIES

If a Party receives a complaint, notice or communication from a Supervisory Authority that relates directly or indirectly to (i) processing of personal data under this JCA; or (ii) a potential failure to comply with Data Protection Laws in relation to the personal data processed under this JCA, the receiving Party shall, to the extent permitted by applicable law, promptly forward the complaint, notice or communication to the other Party. The Parties shall coordinate their responses to enquiries from Supervisory Authorities regarding the processing covered by this JCA to the extent that this is legally permissible and reasonable.

6. SECURITY MEASURES

Each Party shall, taking into account the nature of the processing, implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk as stated under the GDPR Article 32.

7. PERSONAL DATA BREACH MANAGEMENT

The Parties shall immediately provide each other with all information in connection with a personal data breach which is necessary for examining the personal data breach and its consequences for the fulfilment of any notification obligations pursuant to Art. 33 GDPR and informational obligations pursuant to Art. 34 GDPR.
In the event that there is an obligation to notify a competent Supervisory Authority pursuant to Art. 33 GDPR, the Parties shall coordinate further action and support each other in fulfilling the notification obligations.
If it is required to inform data subjects under Art. 34 GDPR, the Parties will cooperate and carry out joint notification of data subjects to the extent that they consider this to be reasonable.

8. REMUNERATION

Each Party shall bear the costs related to its own processing of personal data and for fulfilling its obligations under this JCA. The Parties shall not be entitled to any remuneration based on this JCA.

9. ENGAGING PROCESSORS AND SUB-PROCESSORS

Each Party is allowed to engage processors and sub-processors in connection with processing of personal data in scope of this JCA.

10. INTERNATIONAL TRANSFERS

If one of the Parties is established outside the EU/EEA and/or intends to process personal data outside the EU/EEA, the Parties shall ensure that transfers of personal data between the Parties are carried out in accordance with the Data Protection Laws, e.g. by entering into standard contractual clauses, relying on an adequacy decision by the European Commission or any other acceptable methods for the transfer of personal data to or from the EU/EEA.

11. TERM AND TERMINATION

This JCA shall remain in force until the termination or expiration of the Terms of Use, whereupon it shall terminate automatically without further notice.

12. LIABILITY AND INDEMNIFICATION

Each Party shall be liable for any damage caused through the processing performed by such Party.
The Parties acknowledge that a data subject is entitled to enforce their rights against any of the Parties and that each Party vis á vis the data subject is liable for the entirety of any damage caused by processing of personal data hereunder, unless such Party can prove that it is not in any way responsible for the damage.
Where a Party has paid compensation for damage suffered by a data subject or an administrative fine imposed on a Party under the applicable Data Protection Law and such liability is attributable entirely or partially to the other Party, the first Party shall be entitled to claim from the other Party that part of the compensation corresponding to its part of responsibility for the damage.
What is stated in the Terms of Use regarding liability shall also be applicable under this JCA, i.e. any monetary limitations or similar set forth in the Terms of Use shall also apply in relation to this JCA whereby no double caps shall apply.
Notwithstanding what is stated in Section 12.4, neither the limitation of liability nor any maximum liability cap set out in the Terms of Use shall apply in respect of any claims arising out of any breach of Data Protection Laws.
Each Party shall indemnify and hold the other Party harmless from and against all losses due to claims from third parties resulting from, arising out of or relating to any breach by such first-mentioned Party of this JCA or Data Protection Laws.

13. MISCELLANEOUS

This JCA constitutes an integrated part of the Terms of Use. What is stated in the Terms of Use with regards to, including without limitation, governing law and dispute resolution shall for the avoidance of doubt apply also in relation to this JCA.