Terms and Conditions

Welcome to Photofrog! We love photography and videos and for the most part Photofrog (the "Website") is all about photos, videos and camaraderie. Please read the terms and conditions below carefully — by accepting these terms you are bound by the following:

Use of Website

This Website is owned and operated by Photofrog ("Photofrog") a division of Five Squared Digital Pty Limited. These Terms apply to your access to, and use of, www.photofrog.co.za or any other affiliated website or platforms ("Website"), your use of any digital photography, videos, media hosting services, other services provided on or through this Website ("Services"), and to your purchase of any photographic prints, videos or other media ("Products") from Photofrog.

Photofrog reserves the right to change any provision of these Terms, and any other terms, policy or guideline governing your use of the Website. Your continued use of this Website or the Services or the purchase of any Products following the posting of such changes will confirm your acceptance thereof.

Privacy

We value your privacy and the protection thereof. View our Website's "Privacy Policy" on how we collect, use and disclose personal information from users of the Website in accordance with the Protection of Personal Information Act, 2013 (POPI).

By accepting these terms you consent to Photofrog's communication with you about the Website, Products and Services by email, system messages or any other communication medium.

License Agreement

By using Photofrog's Website and Services you confirm that you are the owner of the photos, digital content or videos ("media") or authorized user thereof ("Content Owner").

While Photofrog facilitates the online purchases of Products, the license to use these products is transferred between the website user and the content owner. As the content owner you agree that are responsible for the media uploaded, setting of prices and ultimate end user license agreement.

Copyright And Limited License

The Website, text, code and other content and materials on the Website and the selection and arrangement thereof ("Website Materials") is the property of Photofrog.

Photofrog grants you a limited, non-transferrable right to access and use the Website. You agree to not:

Any use of the Website other than as specifically authorized herein is strictly prohibited and will terminate the use of this website.

Photofrog, in its sole discretion, reserves the right to terminate this agreement and restrict or terminate the use of the website by any user or content owner.

Trademarks

All intellectual property of Photofrog may not be copied, imitated or used without the prior written permission of Photofrog. This includes logo, trademark and slogan.

Third Party Content

Photofrog reserves the right to display third party content. Any third party content not imply affiliation, endorsement or approval by Photofrog. Photofrog makes no claim or representation regarding, and accepts no responsibility for, such content or for the quality, accuracy, nature, ownership or reliability thereof.

Your Account

By agreeing to these terms you warrant that you are 18 years or older and that all information provided true and correct.

Important notices may be sent to your email account, as such please ensure that your details remain updated.

This website uses cookies and may collect and use data as per the privacy policy.

Photofrog reserves the right to terminate, with 30-day written notice to the associated email address, any free accounts that are considered to be dormant. A free account will be considered dormant when:

The content owner responsible for maintaining the confidentiality of the password associated with his account and for ensuring safety measures are implemented.

You agree to immediately notify Photofrog of any unauthorized use or your account or password, or any other breach of security, and to accept all risks of unauthorized access to any information disclosed by you.

Photofrog is hereby indemnified and held harmless against any and all damages relating to any security breach.

Data Processing

It is agreed that for all photos and videos submitted by the Content Owner, that:

A) The Content Owner is the "Responsible Party" as defined in the Protection of Personal Information Act of all photos and videos uploaded to Photofrog.

B) The Content Owner wishes to subcontract the services (as defined above), which imply the processing of Personal Information, to Photofrog, acting as the "Operator" as defined in the Protection of Personal Information Act.

The Content Owner agrees and confirms that he/she/it has obtained the necessary consent to upload, distribute, use and sell the videos and photos in terms of the Protection of Personal Information Act, 2013. Should the subject matter be a minor, that the necessary consent has been obtained from the guardian or parent. It remains the responsibility of the Content Owner to obtain the necessary consent in terms of the Act.

The Content Owner instructs Photofrog to process the photos and videos uploaded to its servers by the Content Owner to:

  1. provide the Services and related technical support;
  2. fulfil legal obligations or resolve disputes;
  3. exercise any internal task aimed to optimise the security, privacy, confidentiality and functionalities of the Services;
  4. exercise internal reporting, financial reporting and other similar internal tasks;
  5. sub contract any processing of photos and videos to provide the services.

Disclaimer of Warranties

The website, the website materials, the products and the services are provided on an "as is" and "as available" basis without warranties of any kind, express or implied. Photofrog disclaims all warranties, express or implied, without limitation, including but not limited to merchantability, fitness for a particular purpose, general use as the case may be to the website, products and services.

Photofrog does not represent or warrant that the website materials or the services are accurate, complete, reliable, current or error-free or that the website, its servers or email sent from Photofrog or the website are free of viruses or other harmful components. Photofrog is not responsible for typographical errors or omissions relating to pricing, text, photos or videos. Photofrog also makes no representation or warranty regarding the availability, reliability or security of the website and shall not be liable for any unauthorized access to or any modification, suspension, unavailability, or discontinuance of the website or the products or services provided thereon.

Limitation of Liability

You hereby indemnify and hold harmless Photofrog, its directors, members, employees or agents be liable for any direct, special, indirect or consequential damages, or any other damages of any kind, including, but not limited to, loss of use, loss of profits or loss of data, whether in an action in contract, tort or otherwise, arising out of or in any way connected with the use of or inability to use or view the website, the services, the products, the user content or the website materials contained in or accessed through the website, including any damages caused by or resulting from your reliance on any information obtained from Photofrog, or that result from mistakes, omissions, interruptions, deletion of files or email, errors, defects, viruses, delays in operation or transmission or any termination, suspension or other failure of performance, whether or not resulting from acts of god, communications failure, theft, destruction or unauthorized access to Photofrog's records, programs or services.

Licensing

For purposes of this clause the following terms will have the following meanings: "Commercial Use License" means a licensing type in which the licensee is entitled to use the Photos or Videos subject to the commercial use license; "Model Release" means a written release signed by or on behalf of any living person or the estate of a deceased person who is depicted in whole or in part in any Photos or Videos; "Personal Use License" means a licensing type in which the licensee is entitled to use the Photos or Videos subject to the personal use license; "Property Release" means a written release from the owner and/or occupier of any property that is depicted in whole or in part in any Photos or Videos.

  1. Rights Granted by Content Owner

    By uploading or posting Photos or Videos to be licensed to Site users using Photofrog's shopping cart, the Content Owner hereby grants to Photofrog the right to facilitate the licensing by Content Owner of Photos or Videos posted on Photofrog to a licensee according to the Personal Use License.

  2. Content Owner Responsibilities
    1. The Content Owner agrees to pay the relevant transaction fees levied on sales as stipulated on Photofrog's pricing page.
    2. Content Owner is responsible for paying any taxes owed on their portion of earnings, including, but not limited to, sales taxes (such as VAT) and income tax, as required by law.
    3. Content Owner is responsible for all Photos or Videos posted to the Site including without limitation the:
      1. designation of and update of prices using the pricing tool
      2. the removal, if necessary, of Photos or Videos from the Site.
  3. Event Photography and Organiser Relationships
    1. Where an event organiser has appointed an official or exclusive photographer, Content Owners shall not misrepresent themselves as being affiliated with, appointed by, or acting on behalf of the event organiser or any official photographer of the event.
  4. Media Submission and Licensing

    Photofrog, at its sole discretion, reserves the right to remove or reject any photos or videos submissions to the Website.

    Photos or Videos should be free from any distinguishable third party names, trademarks, logos, copyright designs, works of art, architecture, or any other depictions requiring additional rights. Content Owner understands and agrees that all Photos or Videos are licensed directly by the Content Owner. Photofrog merely facilitates and enables such license and is not responsible for the Photos or Videos.

Event Media Accreditation and Commercial Publishing

Photofrog recognises and respects the rights of event owners and organisers to regulate the commercial use of media captured at their events. While the taking of photographs and videos in public spaces may be permitted by law, Photofrog draws a clear distinction between the capture of media for personal purposes and the publication or distribution of such media for economic gain.

Content Owners acknowledge and agree that:

1. Where an event owner or organiser requires media accreditation as a condition for the commercial use, licensing, sale or distribution of photographs or videos captured at that event, the Content Owner is solely responsible for obtaining such accreditation prior to uploading or offering such media for sale on the Website.

2. The Content Owner shall not upload, publish, license or otherwise make available for commercial purposes on the Website any photographs or videos captured at an event where media accreditation is required, unless the Content Owner has obtained the necessary accreditation or written permission from the relevant event owner or organiser.

3. Photofrog supports the sporting and events community by upholding the economic interests of event owners and organisers, promoting an improved experience for event participants and attendees, and ensuring the protection of personal information in accordance with applicable law.

4. Photofrog reserves the right, at its sole discretion, to remove or restrict access to any media that has been uploaded in contravention of an event's media accreditation requirements, upon notification by the relevant event owner or organiser or upon becoming aware of such contravention.

5. The Content Owner indemnifies and holds Photofrog harmless against any claims, damages or losses arising from the Content Owner's failure to obtain the required media accreditation or permissions from event owners or organisers.

Accreditation Compliance and Verification

6. Photofrog operates as a platform and is not privy to the specific media accreditation requirements of each event. Where an event's accreditation requirements are not publicly available, Photofrog may require the event owner or organiser to submit such requirements in the form of a written letter, signed by an authorised representative of the event, setting out the applicable accreditation conditions.

7. Photofrog does not have the capacity to proactively monitor or verify compliance with individual event accreditation requirements. Any alleged breach of accreditation requirements must be brought to Photofrog's attention by the relevant event owner or organiser directly. Photofrog shall not act on accreditation complaints submitted by competing Content Owners, as the enforcement of event accreditation requirements is a matter between the event owner or organiser and the Content Owner in question. A Content Owner may only request the review or removal of another Content Owner's media where such request is based on a valid and documented claim of exclusive media rights in accordance with clauses 11 to 15.

8. Upon receipt of a valid notification from an event owner or organiser regarding a potential accreditation breach, Photofrog will take reasonable steps to investigate and address the matter. This process may require communication between Photofrog, the Content Owner and the event owner or organiser, and may take a reasonable period of time to conclude. Photofrog shall not be held liable for any delays, losses or damages arising from or during this process, as the provision of information and resolution of such matters is largely dependent on the cooperation of the relevant parties.

9. Where Photofrog receives a notification from an event owner or organiser regarding a potential accreditation breach and requests verification of accreditation status from the Content Owner, the Content Owner must provide satisfactory proof of valid accreditation within twenty-four (24) hours of such request. For the purposes of this clause, "satisfactory proof of valid accreditation" means any one or more of the following:

a) an official media accreditation certificate, pass or credential issued by or on behalf of the event owner or organiser, clearly identifying the Content Owner or their authorised representative by name;

b) written confirmation from the event owner or organiser, on official letterhead or from a verifiable official email address, expressly authorising the Content Owner to capture and commercially distribute media from the event in question;

c) a signed media accreditation agreement or contract between the Content Owner and the event owner or organiser, setting out the terms under which commercial media coverage is permitted; or

d) any other form of written documentation that, in the reasonable opinion of Photofrog, sufficiently demonstrates that the Content Owner was duly accredited to capture and commercially distribute media at the relevant event.

All documentation must clearly reference the specific event in question, must be dated, and must have been issued or executed prior to or on the date of the event. Photofrog reserves the right, at its sole discretion, to determine whether the proof submitted is satisfactory, and may request additional or supplementary documentation where the initial submission is unclear or insufficient.

Should the Content Owner fail to provide satisfactory proof within the twenty-four (24) hour timeframe, Photofrog shall be entitled to assume that no valid accreditation has been obtained and may, at its sole discretion, remove, restrict or suspend access to the relevant media pending resolution of the matter.

10. Content Owners who capture media at events acknowledge that they must, at all times, be in a position to provide proof of valid media accreditation upon request and within the timeframe specified in clause 9 above. It is the Content Owner's responsibility to retain and have readily available all accreditation documentation for any event at which media is captured for commercial purposes on the Website.

Official Photographer Status and Exclusivity

11. Content Owners acknowledge and agree that appointment as an official photographer or official media provider for an event does not, in and of itself, confer exclusive rights to photograph, record or commercially distribute media from that event. Official photographer status and exclusivity of media rights are separate and distinct arrangements, and the one shall not be presumed to imply the other.

12. A Content Owner who claims exclusive media rights at an event must hold a written exclusivity agreement with the event owner or organiser that expressly and unambiguously grants such exclusive rights. For the purposes of this clause, an exclusivity agreement must, at a minimum:

a) be in writing and signed by or on behalf of the event owner or organiser;

b) clearly identify the event, including the date, location and name of the event;

c) expressly state that the Content Owner has been granted the exclusive right to capture and/or commercially distribute media from the event; and

d) specify the scope and duration of the exclusivity, including whether it applies to all media or only to certain categories of media (such as photography, video or both), and the period during which such exclusivity applies.

13. In the absence of a written exclusivity agreement that meets the requirements of clause 12, Photofrog shall not restrict, remove or prevent the publication of media from an event on the basis of a claim of exclusivity by any Content Owner. No Content Owner may request or demand that Photofrog remove another Content Owner's media from the Website solely on the grounds that the requesting party is or was the official photographer for the event in question.

14. Where a dispute arises between Content Owners regarding exclusivity of media rights at an event, Photofrog may request all parties involved to submit relevant documentation, including any exclusivity agreements, for review. Photofrog shall not be held liable for any losses or damages arising from such disputes and reserves the right to maintain, remove or suspend access to the disputed media at its sole discretion pending resolution of the matter.

15. Content Owners are encouraged to clarify and confirm, in writing, the scope of their appointment with event owners and organisers prior to the event, including whether their role carries exclusive media rights. Photofrog shall bear no responsibility for any Content Owner's failure to ascertain the nature and extent of their appointment.

Event Organiser Responsibility for Enforcement of Exclusivity

Notwithstanding Photofrog's willingness to assist in the protection of legitimate exclusivity arrangements, the Content Owner and all parties acknowledge and agree that the primary responsibility for upholding and enforcing any exclusive media rights agreement rests with the event owner or organiser who granted such rights. This responsibility includes, but is not limited to:

a) implementing reasonable measures to control and restrict physical access to the event by unauthorised media personnel, including the use of designated media zones, credential checks and access control procedures;

b) clearly communicating the existence of exclusive media arrangements to all attendees, participants, vendors, volunteers and other parties present at or involved in the event, through signage, event rules, entry conditions or other appropriate means;

c) issuing direct instructions to any party found to be capturing media at the event in contravention of the exclusivity arrangement, requiring such party to cease and desist from doing so;

d) taking reasonable steps to prevent the unauthorised capture and commercial distribution of media at the event before such media is uploaded to any platform, including the Website; and

e) maintaining records of all accreditation and exclusivity arrangements granted in respect of the event, and making such records available to Photofrog upon request in the event of a dispute.

Photofrog's role in supporting exclusivity arrangements is limited to the measures set out in these Terms and is secondary to the event owner or organiser's obligation to enforce such arrangements at the source. Where an event owner or organiser has failed to take reasonable steps to protect the exclusivity arrangement at the event itself, including failing to restrict physical access or to communicate the arrangement to relevant parties, Photofrog shall not be held responsible for the presence of competing media on the Website, and the Content Owner's remedy shall lie against the event owner or organiser.

Content Owners who hold exclusive media rights are encouraged to satisfy themselves, prior to the event, that the event owner or organiser has adequate measures in place to protect those rights. Photofrog shall bear no responsibility for the failure of an event owner or organiser to honour or enforce an exclusivity agreement.

Conflicting Grants of Rights by Event Owners or Organisers

16. Content Owners acknowledge that Photofrog has no control over, and assumes no responsibility for, the arrangements entered into between event owners or organisers and any Content Owner or third party. Where an event owner or organiser grants exclusive media rights to one Content Owner and subsequently grants permission, accreditation or similar rights to another Content Owner in respect of the same event, such conflict is a matter solely between the affected Content Owners and the event owner or organiser.

17. Photofrog shall not be held liable, and is hereby indemnified by all Content Owners, against any claims, losses, damages or disputes arising from conflicting, overlapping or inconsistent grants of media rights, exclusivity arrangements or accreditation permissions made by an event owner or organiser to multiple parties, whether such grants were made simultaneously, sequentially or in contradiction of prior arrangements.

18. In the event that Photofrog receives competing claims of exclusivity or conflicting instructions from multiple Content Owners in respect of the same event, Photofrog shall be entitled, at its sole discretion, to:

a) request all affected parties, including the event owner or organiser, to provide written clarification of the rights granted;

b) maintain all disputed media on the Website pending resolution of the dispute between the affected parties;

c) temporarily suspend access to all or part of the disputed media pending resolution; or

d) take any other action it deems reasonable in the circumstances.

Photofrog is under no obligation to adjudicate, mediate or resolve such disputes and shall not be required to favour one Content Owner's claim over another's. Photofrog's decision regarding the treatment of disputed media during any such dispute shall be final and binding, and Photofrog shall only be required to take further action in accordance with clauses 20 to 22 below.

19. Content Owners who hold or claim exclusive media rights at an event are solely responsible for the enforcement of such rights against the event owner or organiser and any third parties. The appropriate remedy for a breach of an exclusivity agreement lies between the Content Owner and the event owner or organiser, and not against Photofrog or any other Content Owner publishing media on the Website in good faith and with the permission of the event owner or organiser.

Resolution and Confirmation

20. Photofrog shall only be required to take action in respect of any dispute arising from conflicting grants of media rights or exclusivity arrangements once such dispute has been resolved between the affected Content Owner(s) and the event owner or organiser, and satisfactory written confirmation of the resolution has been provided to Photofrog. For the purposes of this clause, "satisfactory written confirmation" means a written statement, signed by both the affected Content Owner(s) and the event owner or organiser, or their duly authorised representatives, that clearly sets out:

a) the agreed outcome of the dispute;

b) which Content Owner(s), if any, hold the right to commercially publish or distribute media from the event in question;

c) any specific actions required of Photofrog, such as the removal, reinstatement or continued publication of particular media; and

d) confirmation that all parties to the dispute consent to the actions requested of Photofrog.

21. In the absence of such written confirmation, Photofrog shall be under no obligation to remove, restrict, reinstate or otherwise alter the status of any media on the Website in connection with the dispute, and shall not be held liable for maintaining the status quo pending resolution.

22. Photofrog reserves the right, at its sole discretion, to determine whether the written confirmation provided is satisfactory and may request additional documentation or clarification before taking any action. Photofrog shall not be required to act on instructions received from only one party to a dispute where multiple parties are involved.

Complaints and Takedown Requests by Content Owners

23. A Content Owner who wishes to submit a complaint or request for the removal of another Content Owner's media from the Website may do so in accordance with the Takedown Request procedures and accepted grounds set out in the Photofrog Website Terms and Conditions. Such requests are subject to the same documentation requirements, grounds for acceptance, and processing procedures as apply to all Takedown Requests under those terms.

24. Where a Content Owner's complaint or Takedown Request relates to event accreditation, exclusivity or related matters, the specific provisions of clauses 1 to 22 of these Event Media Terms shall take precedence over the general Takedown Request provisions of the Website Terms and Conditions. In particular:

a) accreditation complaints must be raised by the event owner or organiser directly, not by a competing Content Owner (clause 7);

b) a Content Owner may only request the review or removal of another Content Owner's media on the basis of a valid and documented claim of exclusive media rights that meets the requirements of clauses 11 to 15; and

c) Photofrog shall only be required to act once the dispute has been resolved and satisfactory written confirmation has been provided in accordance with clauses 20 to 22.

Grounds Not Accepted from Content Owners

25. Without limiting the generality of the rejected grounds set out in the Website Terms and Conditions, Content Owners are specifically advised that Photofrog shall not consider or act upon complaints or requests for the removal of another Content Owner's media that are based on:

a) commercial grievances or competitive disputes that do not involve a documented claim of exclusive media rights in accordance with clauses 11 to 15;

b) general dissatisfaction with the quality, style, composition or artistic merit of another Content Owner's media;

c) disputes over pricing, client relationships or commercial arrangements between Content Owners;

d) claims that are vague, speculative or unsupported by documentary evidence; or

e) requests motivated by the desire to suppress competition or to gain an unfair commercial advantage on the Website or in the market.

Photofrog reserves the right, at its sole discretion, to determine whether a complaint falls within the accepted grounds and to dismiss without further action any request that it considers to fall outside those grounds, to be vexatious in nature, or to be submitted in bad faith.

Representations and Warranties of Content Owner

Content Owner represents and warrants to Photofrog that:

  1. Content Owner represents and warrants to Photofrog that he/she/it owns (or has legal right to represent and license) all copyright and other rights, title and interest in and to all Photos or Videos submitted to the Website and has the right to grant all licenses granted herein without violating the rights of any third party;
  2. if the Content Owner who is agreeing to this Terms is an agent of the copyright owner(s), then the Content Owner has been granted full authority of the copyright owner(s) to enter into this agreement;
  3. all information provided to Photofrog through the Website or by any all other means concerning all Photos or Videos, to the best of its knowledge, is true and correct; and
  4. all Photos or Videos submitted or posted on the Website by Content Owner have all necessary releases and permissions required to grant the licenses granted under the applicable license, including without limitation valid Model Releases and Property Releases for Photos or Videos depicting recognizable people (living or dead) and private properties, and all written permission regarding all distinguishable trademarks;
  5. all Media submitted or posted on the Website by Content Owner are of the best quality and suitable for good quality printing of up to A1 size as determined by Photofrog;
  6. the Content Owner agrees and confirms that he/she/it has obtained the necessary consent to upload, distribute, use and sell the videos and photos in terms of the Protection of Personal Information Act, 2013. Should the subject matter be a minor, that the necessary consent has been obtained from the guardian or parent. It remains the responsibility of the Content Owner to obtain the necessary consent in terms of the Act;
  7. where the Content Owner captures media at events for commercial purposes, the Content Owner has obtained all necessary media accreditation and, where applicable, holds a valid exclusivity agreement in accordance with the provisions of the Event Media Accreditation and Commercial Publishing clauses set out in these Terms.

Applicable Law

This agreement is governed by the laws of the Republic of South Africa. The parties consent to the jurisdiction of the High Court of Pretoria.

Severability

If any provision of these Terms shall be deemed invalid, unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.