Legal notice

LIGHTMEDIATION is a service offered by LightMediation, a French company, (RCS 490 658 127 PARIS), and whose principal office is located at 105 rue de l’abbè Groult, 75015 Paris (hereinafter referred to as "LIGHTMEDIATION”). A French version of these Terms and Conditions of Service exists for consultation by the Members of the LIGHTMEDIATION service. The French version controls these Terms and Conditions of Service. These Terms and Conditions of Service shall be governed by French law. In the event of any dispute relative to performance and/or interpretation of these terms and conditions, the Paris Tribunal de Grande Instance shall have exclusive jurisdiction if the case has been brought by one or more Members of the Service.  LIGHTMEDIATION reserves the right, at its discretion, to also submit matters to any other competent jurisdiction under the applicable rules of common law.

1.1. The LIGHTMEDIATION Service (hereinafter the “Service”) is an intermediation service between photo essay photographers or copyright holders over such photographs (hereinafter “Producers”) and the press agencies which may publish them (hereinafter “Publishers”). Such a service shall be provided exclusively to professionals. 1.2. LIGHTMEDIATION shall offer Producers who join the Service the possibility to transfer to it, by means of an electronic communication protocol, the photo essays which they have authored (hereinafter the “Photographs”) and which shall then be made available to Publishers who are also Members of the Service.  1.3. LIGHTMEDIATION shall receive Publishers’ bids to acquire the usage rights to photo essays available under the Service. LIGHTMEDIATION shall negotiate and enter into agreements on behalf of Photographers with Publishers to transfer said rights within the limits of the special instructions provided by the former to LIGHTMEDIATION as agent for each photo essay.1.4. For the purposes of these Terms and Conditions of Service, the term "Usage Rights" shall include only those rights of reproduction and representation as referred to in Article L. 122-1 of the Intellectual Property Code, the scope of which shall be specified for each transaction as per Article 8 herein.

 

2.1. The Service shall be accessible only to those Producers and Publishers who have previously accepted these Terms and Conditions of Service and filled out a membership form (hereinafter the “Members”). Use of any personal data provided to LIGHTMEDIATION at the time of joining the Service shall be limited to the purposes thereof.  Members may access and modify said data at any time.  2.2. All Members shall be assigned a personal identification number and access code (hereinafter the “Access Codes”).  The Access Codes allow each Member to identify himself for purposes of accessing the Service and to use it as per these Terms and Conditions of Service.   Members shall abide by these Terms and Conditions of Service throughout their membership in the Service.  Said access codes are personal and confidential.  Members accept full responsibility for the use of their assigned Access Codes.  Members specifically assume liability for any fraudulent use of any such Access Codes.  Members shall keep their access codes confidential and shall not disclose such codes to third parties in any manner whatsoever.In the event of the loss or theft of one of a Member’s Access Codes, said Member shall immediately inform LIGHTMEDIATION in order to receive new access codes.

3.1. Producers undertake to transfer the Photographs or Groups of Photographs to LIGHTMEDIATION exclusively in the form of data files which provide a sufficient level of graphic resolution to enable their quality publication on paper.  In order to assist them in the transfer of photographs, LIGHTMEDIATION may make transfer software available to Producers free of charge. 3.2. Producers shall be responsible for indicating the information to accompany each Photograph or Group of Photographs transferred to LIGHTMEDIATION. To that end,  LIGHTMEDIATION may provide publishing software designed to classify the Photographs from the same photo essay and to insert the titles, captions and the name or pseudonym under which the Producer would like his Photographs or Groups of Photographs disclosed.Producers are liable for the titles and captions chosen to accompany their disclosed Photographs or Groups of Photographs. 3.3. Producers acknowledge that LIGHTMEDIATION shall remain the exclusive holder or licensee of all intellectual property rights related to the publishing and/or transfer of any software provided.  Any use of said software by Producers for purposes other than the publishing and/or transfer of the Photographs in the scope this Service is strictly forbidden. Use of such software by the Producers is at their own risk.  LIGHTMEDIATION makes no representation as to the compatibility of such software with the computer systems of its Producers, nor as to the appropriateness of such software to their specific needs. LIGHTMEDIATION disclaims all liability for the loss or alteration of any files or failure to transfer Photographs. The Producers acknowledge having been advised to back up any computer files used in conjunction with any software provided by LIGHTMEDIATION. The Producers also acknowledge that the use of electronic communication protocols can lead to unforeseeable results.  3.4. LIGHTMEDIATION reserves the right, at its sole discretion, to refrain from proposing certain Photographs or Groups of Photographs to Publishers and to refuse, also at its discretion, any titles or captions chosen by the Producers.  

 

4.4. In joining the Service, Producers expressly authorize LIGHTMEDIATION to send Photographs by electronic mail to Publishers in the form of PDF or equivalently formatted files, solely for viewing purposes.4.5. Publishers acknowledge that PDF or equivalently formatted files which they receive from LIGHTMEDIATION are confidential, non–transferable and non-reproducible. They are reserved to the Publishers’ private viewing.  Publishers shall not copy such files, communicate them to third parties, disclose them to the public in any manner whatsoever, and/or reveal their origin.Producers acknowledge and accept that under no circumstances may they claim the liability of LIGHTMEDIATION in the event that one or more Publishers breaches any duty under this Article.4.6. The transfer by electronic mail of a Photograph in the PDF or an equivalent format to a Publisher shall constitute an offer to enter into negotiations with the Publisher for the eventual purchase of usage rights relative to said Photograph.  Prices which may be contained in electronic messages shall in no way be deemed final, but rather as bases for negotiation.  Publishers acknowledge that the same Photograph or Group of Photographs may be sent simultaneously to several Publishers and that base prices proposed may consequently be negotiated up in the event that several Publishers prove interested in acquiring competing usage rights. In addition, Publishers acknowledge that LIGHTMEDIATION may break off negotiations with them in favour of another Publisher at any time, without notice or compensation.

 

5.1. Producers warrant to LIGHTMEDIATION that they are the sole holders of all intellectual property rights attached to the Photographs that they shall transfer in their use of the Service and that their disclosure shall not infringe any intellectual and/or industrial property rights (trademarks, designs and models) held by third parties.5.2. The Producers also warrant to LIGHTMEDIATION that they have not engaged in unfair or illegal conduct in order to obtain the Photographs. In particular, Producers represent that they have not violated Article 226-1-2° of the French Criminal Code. 5.3. Producers shall indemnify and hold harmless LIGHTMEDIATION against all claims or actions brought by third parties or Publishers claiming liability on the part of LIGHTMEDIATION based on its role in providing the Service, in the event that the claims or actions, no matter their basis, are linked to the content of one or more Photographs received by LIGHTMEDIATION. Producers shall thus fully indemnify LIGHTMEDIATION for all consequences of any above-mentioned claims or actions and shall pay all damages and interest, penalties and applicable publication fees that LIGHTMEDIATION may be ordered to pay, in addition to attorneys’ fees due by LIGHTMEDIATION for its defence. Producers also promise to pay any settlement payments which may be due by LIGHTMEDIATION to any applicable plaintiff(s) or claimant(s), provided the former have been previously informed by LIGHTMEDIATION of the settlement discussions and have previously consented to said settlement amount.

 

6.1. Producers agree to appoint LIGHTMEDIATION as their agent to represent them in the execution of licensing agreements for usage rights with Publishers interested in their Photographs and to negotiate the terms and conditions of such licensing agreements with the latter.  6.2. For each Photograph or Group of Photographs, the applicable Producer shall be responsible for defining the limits of the agency agreement with LIGHTMEDIATION.Failing any stated limitation, the Producer shall be deemed to have granted LIGHTMEDIATION the broadest powers to negotiate and license, on behalf of the applicable Producer, with one or more Publishers, whether exclusive or non-exclusive, and for the price negotiated by LIGHTMEDIATION, the whole of the usage rights related to the applicable Photograph or group of Photographs, including rights of display and reproduction through any existing or future medium by all means of public communication, worldwide and for as long as the rights shall enjoy legal protection.  Any agency agreement stipulated as exclusive shall automatically grant LIGHTMEDIATION the power to negotiate an exclusive licensing agreement for usage rights with a Publisher. 6.3. Any licensing agreement for usage rights related to one or more Photographs in the manner set forth in these Terms and Conditions of Service shall be negotiated and executed by LIGHTMEDIATION on behalf of the applicable Producer(s). 6.4. Producers who have chosen a pseudonym when they entered the information required in Article 3.2  shall be presented to the Publishers under that pseudonym. Producers having opted not to state a name or a pseudonym under which they wish to see their Photographs disclosed shall be presented to Publishers by identification code.  6.5. Any agreement to license usage rights related to one or more Photographs in the manner set forth in these Terms and Conditions of Service shall be deemed executed between the applicable Producer and Publisher, the former acting as licensor, the latter as licensee. Members acknowledge and agree that the role of LIGHTMEDIATION in providing the Service shall in no way be deemed as that of a party to the resulting agreements. The Producers and Publishers thus assume exclusive liability in the event of non-performance of their respective duties under the various contracts that they have executed through LIGHTMEDIATION in the scope of their use of the Service.  6.6. In the event of actual or alleged breach by a Producer referred to in Article 6.4 of any of the duties under a licensing agreement executed with one or more Publishers, LIGHTMEDIATION shall reveal to said Publishers, upon their request, the exact identity of the applicable Producer(s).  The parties acknowledge and agree that any Producers make no representations regarding any consent provided by individuals represented in the Photographs, as per Article 8 of these Terms and Conditions of Service.

 

7.1. The agreements executed as per Article 6.5 shall be deemed legally binding upon receipt of the applicable Publisher’s express and full acceptance of the licensing terms and conditions offered by LIGHTMEDIATION regarding the licensing fees, term of the transferred rights, applicable territory and authorised manners of use as well as any agreed terms of exclusivity.  This acceptance must be sent by electronic mail to LIGHTMEDIATION from the applicable Publisher’s electronic mail address.  7.2. As soon as the specific terms and conditions of the transfer are accepted by the applicable Publisher in the manner set forth in Article 7.1 of these Terms and Conditions of Service, LIGHTMEDIATION shall undertake to send a single-use hypertext link to said Publisher as quickly as possible which will allow the latter to access and download the subject Photograph or Group of Photographs under the licensing agreement.  This link shall only be  sent a single time by LIGHTMEDIATION to the electronic address provided by the Publisher on its Service membership form. Publishers shall be responsible for their use of the downloading links and must ensure that they are not disclosed to third parties.  Publishers acknowledge that LIGHTMEDIATION may not be held liable in the event of fraudulent use of a downloading link and under no circumstances shall the Publishers have the right to demand a second transmission.   7.3. LIGHTMEDIATION reserves the right, at its sole discretion, to suspend transmission of the single-use downloading link referred to in Article 7.2 of these Terms and Conditions of Service pending actual payment by the applicable Publisher of the agreed licensing fee amount.

 

The licensing agreements referred to in Article 6.5 are subject to the specific terms accepted by the Publisher as per Article 7.1. Publishers expressly acknowledge that these licensing agreements apply solely to the licensing of usage rights, as per the agreed limits.Such agreements do not imply, however, any transfer by the Producers involved of any rights relating to the image of any person(s) present in the subject Photographs, nor any warranty, whether on the part of Producers or LIGHTMEDIATION, of having obtained the consent of such person(s) to publish and distribute said Photographs.As a consequence, Publishers agree to accept full responsibility for obtaining the consent of any person(s) figuring in the Photographs of which they have acquired usage rights through this Service. Any publication and/or distribution of these Photographs without obtaining such consent shall be undertaken at the Publishers’ own risk. 

 

Article 9: Publishers’ Indemnity of LIGHTMEDIATION

Publishers shall indemnify and hold harmless LIGHTMEDIATION against all claims or actions brought by third parties or Producers claiming liability on the part of LIGHTMEDIATION based on its role in providing the Service, in the event that the claims or actions, no matter their basis, are linked to the publication, disclosure and/or the act of making available, by the applicable Publisher or its successors in interest, of one or more Photographs acquired through the services of LIGHTMEDIATION. Publishers shall thus fully indemnify LIGHTMEDIATION for all consequences of any above-mentioned claims or actions and shall pay all damages and interest, penalties and applicable publication fees that LIGHTMEDIATION may be ordered to pay, in addition to attorneys’ fees due by LIGHTMEDIATION for its defence. Publishers also promise to pay any settlement payments which may be due by LIGHTMEDIATION to concerned plaintiff(s) or claimant(s), provided the former have been previously informed by LIGHTMEDIATION of the settlement discussions and have previously consented to said settlement amount.

10.1. Publishers must pay the Licensing Fees negotiated in the scope of the Service by the deadline and subject to the terms of payment agreed by the Publisher and LIGHTMEDIATION.10.2. With the exception of those cases set forth in Article 10.3, the amount agreed for the acquisition of usage rights shall remain due and payable, regardless of whether or not the Publisher actually uses the applicable Photograph or group of Photographs.10.3. In the event that LIGHTMEDIATION executes an agreement with a Publisher to apply a pricing scale to reflect the nature and/or importance of the proposed publication, said Publishers must provide LIGHTMEDIATION, upon request, all information and/or documents necessary to calculate the final amount to invoice. In the event that the information requested is not provided within a maximum of eight (8) days, the price to be invoiced shall be calculated based on the highest pricing category contained in the pricing scale.10.4. Producers authorize LIGHTMEDIATION to invoice on their behalf those invoices related to usage rights for their Photographs. Corresponding invoices shall be issued in the name of LIGHTMEDIATION. Producers shall have the right to obtain a copy of those invoices issued on their behalf by LIGHTMEDIATION to Publishers.10.5. LIGHTMEDIATION makes no representation as to the timeliness of or actual payments by Publishers of amounts invoiced on behalf of Producers. Producers thus acknowledge and agree to assume the risk related to default or late payment of amounts due and payable to them by Publishers. 10.6. Producers authorize LIGHTMEDIATION to collect payments on its behalf related to negotiated and signed agreements. Producers acknowledge and agree that LIGHTMEDIATION shall first deposit the corresponding amounts before deducting the commission referred to in Article 12 of these Terms and Conditions of Service and issuing payment to Producers.Producers shall be liable for any exchange or other fees billed by banks, particularly in the event of international payments.

Members expressly acknowledge that use of the Service excludes, by its very nature,  any link of subordination between Producers and Publishers, inasmuch as the Producers are deemed to have freely created their Photographs and transferred them of their own initiative to the LIGHTMEDIATION site. Moreover, Producers have no way of knowing in advance the identity of those Publishers who may bid to acquire usage rights for such Photographs.  Consequently, Members acknowledge that the amounts paid to Producers as a result of the agreements concluded with Publishers under these Terms and Conditions of Service may not be considered as pay and are not subject to Social Security requirements. Members are professionals. It is thus their responsibility to inquire as to the tax and social security requirements which apply to the transactions resulting from the Service, to fill out tax returns, comply with any mandatory formalities and pay the taxes, duties and social contributions that may be required under applicable law.  French Producers with the status of independent photojournalist [reporter-photographe] are required to join AGESSA.LIGHTMEDIATION in no way warrants the accuracy of the tax and/or legal information which it may be required to furnish its Members.  Such information shall in no event be considered as legal advice.

 

In exchange for the intermediation services provided by LIGHTMEDIATION under the Service, Producers undertake to pay LIGHTMEDIATION at the time each licensing agreement is concluded with a Publisher via the Service a commission corresponding to a percentage of the pre-tax usage fees invoiced to the applicable Publisher.This percentage shall be negotiated by the parties for each Photograph or Group of Photographs.

 

13.1. LIGHTMEDIATION is a simple intermediary. It makes no representations toward the Publishers or third parties concerning the intellectual property rights relative to the Photographs, absence of any infringement of rights of privacy of third parties, compliance with the applicable regulations in France and in the countries in which said Photographs could be published, or more generally the absence of any legal risk involved in publishing them. Moreover, LIGHTMEDIATION makes no representation as to the adequacy of the  Photographs for a specific use. 13.2. LIGHTMEDIATION reserves the right at its sole discretion to refrain from offering Publishers certain Photographs or certain Groups of Photographs submitted by the Producers, who acknowledge and agree that LIGHTMEDIATION may not be held liable for such a decision.   However, in the event that LIGHTMEDIATION should refuse to offer Publishers an entire photo essay for which Producer has appointed LIGHTMEDIATION as its exclusive marketing agent, LIGHTMEDIATION shall so inform the Producer via electronic mail within eight (8) working days. 13.3. LIGHTMEDIATION disclaims liability to the Producers for the amount of licensing fees it negotiates within the scope of its agency agreement under Article 6 herein.   LIGHTMEDIATION makes no representations that the price it negotiates with the Publishers shall meet the expectations of the Producers.13.4. LIGHTMEDIATION makes no representations as to the availability of the Service. Members acknowledge and accept that the Service may be interrupted or suspended at any time by LIGHTMEDIATION for technical, material, financial, or other reasons for which it disclaims responsibility.

 

LIGHTMEDIATION reserves the right to suspend or permanently terminate access to the Service of those Members who fail to perform under the present Terms and Conditions of Service.Members shall continue to be liable for performance of those promises undertaken during their membership in the Service.

 

Licensing agreements resulting from the Service provided shall remain strictly confidential. Members shall not disclose their contents to third parties for any reason whatsoever. However, licensing agreements resulting from the Service provided (as well as these Terms and Conditions of Service) may be disclosed in the scope of legal proceedings, for the sole use of a court of competent jurisdiction, in matters based on the alleged breach of one or more of the Terms and Conditions of Service.

 

In the event of conflict between these Terms and Conditions of Service and any other document or specific provision accepted by Members or notified to them in the scope of the Service, these Terms and Conditions of Service shall prevail.