PUBLIC OFFER ON THE CONCLUSION OF THE AGREEMENT FOR THE PROVISION OF ADDITIONAL SERVICES BY ONLINE SQUARE «CUTOUT.CLOUD»
This Public Offer (the «Offer») is an offer of an Individual Entrepreneur Nikita Sergeyevich Shkilev (the «Platform Owner»), registered in the Unified State Register of Individual Entrepreneurs under No. 316527500050624, TIN No. 526021642599, on the one hand, to persons wishing to use the services of the online platform “Cutout.Cloud” (the «Platform Client»), located at the web address https://cutout.cloud/ (the «Platform»), on the other hand, and together referred to as the Parties, enter into an agreement on the conditions set forth below.
- TERMS AND DEFINITIONS.
1.1. The following terms and definitions apply in this document and in the resulting or connected relations of the Parties:
1.1.1. «Public Offer / Offer» - the text of this document with all applications, amendments and additions to it, posted on the Platform and available on the Internet at: https://cutout.cloud/information/oferta-zakluchenie-dogovora
1.1.2. «The agreement on the provision of services to provide the right to use the Cutout.Cloud online platform» – an agreement, together with all Mandatory documents relating to it, concluded between the Platform Owner and the User on the terms of this Offer.
1.1.3. «Services» - services under a Contract concluded in accordance with this Offer.
1.1.4. «Online Site User» - a User who intends to use, is using or was using the functionality of the Site and / or the Service provided on its basis to search for Images and acquire the right to use them.
1.1.5. «The agreement on the provision of services for the provision of the right to use the Cutout.Cloud online platform» – an agreement for the Provider of the platform to provide on a platform the possibility of placing Images on the Platform, using the Images contained on the Platform, and the right to access other additional paid services, Services and free placement by the User of Images and transfer of a full package of rights to them, including intellectual rights, in accordance with all Mandatory documents relating to him, concluded between The Platform Owner and the user of the platform in the manner prescribed by the Rules for concluding agreements on the provision of services to provide the right to use the Cutout.Cloud online platform.
1.1.6. «Image» - an image of a person or object with a removed background (without background) uploaded by the Platform user onto the Platform, intended for use by the Platform Users (without the “hide” mark) under the terms of the License Agreement.
1.1.7. «Indication» - an indication of the User of the online platform to the Online Platform Owner to provide the Services, executed using software on the Platform in accordance with the terms of this Offer and Mandatory documents.
1.1.8. «Offer Acceptance» - full and unconditional acceptance of the Offer by the User of the online platform performing the actions specified in Section 8 of the Offer, creating an Agreement between the User of the online platform and the Platform Owner.
1.1.9. «Platform» – an automated information system available on the Internet at the network address: https://cutout.cloud/.
1.1.10. «Image» - any informational materials, including text, graphic, audiovisual and other materials, including Images that Users upload to the Service and which are accessed using the Service.
1.1.11. «Service» - a set of software and hardware of the Owner of the online platform (computing power), Image and Images to which the Platform Owner provides access using the Platform as part of the information service.
1.1.12. «Profile» - a personal section of the Platform, to which the User of the online platform receives access after registering on the Platform. The User profile of the online platform is intended for entering and editing information about the Contractor, receiving and viewing the tasks of the user of the online platform, processing Orders to the Online Platform Owner.
1.2. In this Offer, terms and definitions not defined in clause 1.1 of the Offer may be used. In this case, the interpretation of such a term is made in accordance with the text of this Offer. In the absence of an unambiguous interpretation of the term or definition in the text of the Offer, one should be guided by its interpretation defined: firstly, by the documents that make up the Agreement between the Parties, secondly, by the applicable norms of national and international law, and subsequently by the customs of business and scientific doctrine .
Any reference in this Offer to a clause (section of the Offer) and / or their conditions means a corresponding link to this Offer (its section) and / or their conditions.
- SUBJECT OF THE AGREEMENT.
The subject of the agreement is the provision by the Platform Owner of access to additional services, Platform Services for a fee to the User access, including:
- providing the Platform Owner with the technical possibility of placing, displaying and providing Users with an online Image site using the Platform, including by creating relevant information objects and maintaining a separate section of the Platform;
- other actions provided for by this Offer (including Mandatory documents) and / or specified in the Directive.
- GENERAL CONDITIONS OF THE AGREEMENT.
3.1. A prerequisite for concluding an Agreement is the unconditional acceptance and compliance by the User of the online platform applicable to the relations of the Parties under the Agreement with the requirements and provisions defined by the following documents (“Mandatory documents”):
- A public offer to conclude an agreement on the provision of additional services by the «Cutout.Cloud» online platform, which is available and / or available on the Internet at https://cutout.cloud/information/oferta-zakluchenie-dogovora and is binding on the Parties a document in the case of execution by the User of an order for the provision by the Platform Owner of services based on the Service.
- A User agreement posted and / or available on the Internet at https://cutout.cloud/information/user-agreement/, and containing the procedure and conditions for users to acquire access to additional services, Platform Services, description of functional capabilities (rights) each status, including rules for determining the category of Images depending on technical parameters; requirements for Images, compliance with which is a prerequisite for posting Images on the site, as well as other rules governing the provision of the Service.
- Platform Rules available at https://cutout.cloud/rules/the-rules-of-the-site/:
3.2. The documents specified in clause 3.1 of the Offer, binding on the Parties, constitute an integral part of the Agreement concluded in accordance with this Offer.
3.3. This Offer contains the comprehensive instructions of the User of the online platform to the Platform Owner. The Platform Owner has the right, but is not obliged to accept, for execution, the User’s tasks of the online platform and recommendations for their implementation, transmitted to the Platform Owner in addition to the Instruction issued in the manner established by this Offer.
- RIGHTS AND OBLIGATIONS OF THE PARTIES.
4.1. The Platform Owner has the right to:
- require the User of the online platform to provide the necessary information and documents, as well as other assistance to the Platform Owner in fulfilling his duties;
- suspend temporarily the provision of Services under the Agreement for technical, technological or other reasons that impede their provision for the time being to eliminate such reasons;
- not to start providing the Services or to suspend their provision in cases of violation of the deadlines for the provision in the proper form of information and materials necessary for the provision of the Services, the inaccuracy of such information and materials, delay in payment for the Services and other cases of complete or partial non-fulfillment by the User of the online platform of his obligations and guarantees under the Agreement, as well as the presence of circumstances that clearly indicate that such performance will not be made within the prescribed period;
- change unilaterally the terms of this Offer and the Mandatory documents specified therein without notifying the User of the online platform in the manner prescribed by this Offer:
- exercise other rights provided for by the current legislation of the Russian Federation, as well as this Offer, including Mandatory documents.
4.2. The Platform Owner shall:
- fulfill the User’s Instruction in full accordance with the Agreement, including Mandatory documents, and the requirements of the applicable norms of national and international law;
- provide the technical ability to post and / or distribute Images using the Platform;
- perform other actions by agreement of the parties.
4.3. The User has the right to:
- require proper fulfillment by the Platform Owner of his obligations under the Agreement;
- edit or delete Images posted by him/her on the Platform at any time through the Profile;
- refuse unilaterally to execute the Agreement in cases provided for by the current legislation of the Russian Federation and / or this Offer;
- exercise other rights stipulated by the Agreement, including Mandatory documents, as well as the current legislation of the Russian Federation.
4.4. The User covenants to:
- verify the information provided to the Platform Owner, including the posted Images and other information objects created on the Platform, before making the Acceptance;
- provide documents (duly certified copies) confirming compliance with the applicable requirements of applicable national and international regulatory rights, including documents certifying the right to possess exclusive rights to intellectual property at the request of the Platform Owner, within 3 (Three) business days;
- check for notifications of the Platform Owner at the email address specified by the User when filling out the Profile;
- comply with the requirements of the Agreement, including Mandatory documents, as well as the norms of applicable national and international legal acts;
- fulfill other obligations stipulated by the Agreement, including Mandatory documents, as well as the current legislation of the Russian Federation.
- RIGHTS OF THE PLATFORM OWNER IN RESPECT OF IMAGES.
5.1. In order to promote the Images, attract users and develop the Service, the User grants the right to the Platform Owner and its other users at their own discretion to determine in relation to any Images: the procedure and methods of demonstration, use of Images, including the modification and use of Images for demonstration purposes (creation demos of Images, examples of the use of Images, etc.).
5.2. The rights specified in this section are granted to the Platform Owner in pursuance of the Agreement concluded under the terms of this Offer, should be carried out by the Platform Owner reasonably and in good faith, to the mutual benefit of the Parties, and shall not entail the User's right to remuneration from the Platform Owner.
- WARRANTIES AND RESPONSIBILITY OF THE PARTIES.
6.1. The Platform Owner guarantees the elimination of any failures and errors in the operation of the Service, if they occur during the execution of the User’s order, as soon as possible.
6.2. With the exception of the guarantee specified in clause 6.1 of this Offer, the Platform Owner does not provide any other express or implied warranties, including, does not guarantee the uninterrupted and error-free operation of the Platform and the Service based on it, and the good faith of other users.
6.3. The User guarantees that:
- posted information about User and Image is true;
- the User is the owner of exclusive rights to the Images and / or has all the necessary intellectual property rights to the Images (exclusive rights or licensed) necessary to provide the Licensees with the right to use the Images under the terms of the License Agreements or an authorized representative of such a copyright holder;
- granting by another user of the Platform and to the Platform Owner the right to use the Images on the terms of contracts does not violate the rights of third parties and does not violate obligations on other transactions concluded;
- the User has received all necessary licenses and other permissions of authorized state bodies for carrying out his activities, or that the User’s activities, in accordance with the requirements of applicable national and international legal acts, do not require a special permit / license / certificate, and also have completed all other actions required applicable national and international legal acts for the implementation of activities by the User.
6.4. The materials provided by the User for the purpose of fulfilling the Agreement by the Platform Owner must fully comply with applicable national and international law, including the use of Images that does not violate the requirements of applicable national and international regulatory acts on advertising and competition, and does not infringe on property and / or personal non-property rights of third parties, including restrictions on the right to use images of people living or dead, User and related rights, trademarks rights, service marks and appellations of origin, the rights to industrial designs, and other exclusive rights to intellectual property; in particular, that:
- the User has obtained the consent of individuals to the publication and further use of their image, or there is reliable evidence that an individual posed for a fee;
- the Platform Owner is exempted from liability for failure to perform or improper performance of this Agreement, if such violation is a result of the User reporting inaccurate data, violation of warranties or other non-performance or improper performance by the User of their obligations under the Agreement;
- the Platform Owner is not liable for any losses incurred by the User, regardless of whether the Platform Owner could have foreseen the possibility of such losses, including if the Platform Owner was notified of the possibility of losses.
6.5. In any case, the liability of the Platform Owner is limited to the amount of remuneration received by the Platform Owner for the execution of the Order (its part), which is associated with the occurrence of liability of the Platform Owner. In this case, the Platform Owner is an information intermediary and is not responsible for violations of the rights of third parties in connection with the placement by the User of materials on the Platform that violate the requirements of applicable national and international legal acts, including requirements regarding the protection of intellectual property.
6.6. When the User provides the Images, they are provided with a free (non-exclusive) license to the Platform Owner and other Platform Users to use them in accordance with the goals announced on the Platform. The specified simple (non-exclusive) license to use the Images is granted to the Platform Owner and other Users of the Platform simultaneously with the addition of Images to the Platform for the entire duration of the exclusive rights to the objects of copyright and (or) related rights to this Image for use in all countries of the world.
6.7. Within the framework of the simple (non-exclusive) license provided to the Platform Owner and other Platform Users, the use of Images is allowed in the following ways:
- play back the Image, i.e. make one or more copies of the Image in any material form, as well as write them to the memory of an electronic device (the right to reproduce);
- distribute copies of the Image, i.e. provide access to images reproduced in any material form, including by network and other means, as well as by sale, rental, lease, provision free of charge, including import for any of these purposes (distribution right);
- publicly display the Image (the right to public display);
- communicate the Image in such a way that any person can have access to it interactively from anywhere and at any time of their choice (the right to be made public);
- modify the Image, i.e. remodel or otherwise process the Image (right to process);
- the right to transfer all or part of the rights received to third parties (the right to sublicense).
6.8. The User is solely responsible for any violation of the obligations established by this Agreement and / or applicable rules of national and international law, as well as for all the consequences of such violations (including any loss or damage that the Platform Owner and other third parties may incur).
6.9. In the event of any claims by third parties regarding a violation by the User of any property and / or personal non-property rights of third parties, as well as prohibitions or restrictions established by law, the User is required, upon request of the Platform Owner, his affiliates and employees, to be officially identified by providing them with a notary a certified obligation to settle the claims on their own and at their own expense, indicating their passport data.
- CIRCUMSTANCES OF INSUPERABLE FORCE (FORCE MAJEURE).
7.1. The parties are exempted from liability for partial or complete failure to fulfill obligations under the Agreement caused by force majeure circumstances arising after its conclusion. To such circumstances, in particular, the Parties include: natural disasters; natural and industrial disasters; Act of terrorism; hostilities; civil unrest; adoption by state authorities or local governments of acts containing prohibitions or restrictions regarding the activities of the Parties under the Agreement; other circumstances that cannot be foreseen or prevented in advance and make it impossible to fulfill the obligations of the Parties under the Agreement.
7.2. Upon the occurrence of force majeure circumstances that impede the fulfillment of obligations under the Agreement, the time period for the Parties to fulfill their obligations shall be postponed in proportion to the time the circumstances were in force, as well as the time required to eliminate their consequences, but not more than 30 (thirty) calendar days. If force majeure circumstances continue to operate beyond the specified period, or when, upon their occurrence, it becomes apparent to both Parties that they will act beyond this period, the Agreement shall terminate.
- ACCEPTANCE OF OFFERS AND CONCLUSION OF THE AGREEMENT.
8.1. The acceptance of this Offer by the User creates an Agreement between the User and the Platform Owner on the terms of this Offer, in accordance with the rules of applicable national and international law.
8.2. The acceptance of the Offer shall mean the completion by the User of the following actions:
- filling out a profile and uploading to the Platform one or more Images as an example of their own work;
- payment for access to additional paid services and Services (payment is considered to be completed after three days from the moment the funds are received by the User of the Platform from the User in payment of the Agreement).
8.3. The Agreement is considered concluded from the moment the Platform Owner receives the Offer Acceptance.
- VALIDITY AND CHANGE OF OFFER.
9.1. The Offer comes into force from the moment of posting on the Platform and is valid until its revocation by the Platform Owner.
9.2. The Platform Owner reserves the right to amend the conditions of the Offer and / or withdraw the Offer at any time at its discretion. Information about the change or revocation of the Offer is communicated to the User at the choice of the Platform Owner by posting on the Platform, in the User’s Profile, or by sending a notification to the email or postal address specified by the User when filling out the Profile or during the execution of the Agreement.
9.3. In case of withdrawal of the Offer or amendments to the Offer, the latter shall come into force from the moment the information is brought to the attention of the User, unless a different deadline for their entry into force is determined by the Offer or additionally with such a message.
9.4. The documents specified in the Offer, binding on the Parties, are approved, supplemented and changed by the Platform Owner at their own discretion and are brought to the attention of the User in the manner provided for notifying the User about a change in the Offer.
- VALIDITY, AMENDMENT AND TERMINATION OF THE AGREEMENT.
10.1. The Agreement shall enter into force upon acceptance of the Offer by the User and is valid for an indefinite period.
10.2. In case of withdrawal of the Offer by the User during the term of the Agreement, the Agreement shall be deemed valid on the terms of the Offer in the latest edition with all Mandatory documents.
10.3. The Agreement may be amended:
- by agreement of the Parties;
- on the initiative of the Platform Owner, when this is expressly provided for by this Offer, by sending the User notification of upcoming changes at least 15 (Fifteen) days before the date of their entry into force. In case of disagreement with the proposed changes, the User has the right to refuse to execute the Agreement by sending the Owner a notice to the Platform in the manner prescribed by clause 12.4.3 of this Offer.
10.4. The cAgreement may be terminated:
- by agreement of the Parties;
- on the initiative of the Platform Owner by unilateral refusal to execute it in whole or in part in case of violation by the User of his obligations or guarantees established by this Offer. A notice of unilateral refusal to execute the Agreement is sent to the User in writing no later than 3 (Three) days before the expected date of termination of the Agreement. In this case, the User is obliged to reimburse the Platform Owner caused by such termination of the Agreement documented losses;
- at the initiative of either of the Parties by unilateral refusal to execute it in whole or in part, subject to the written notification to the other Party at least 7 (Seven) days before the expected date of termination of the Agreement. Moreover, the User is obliged to fully pay for the Services provided by the time of termination of the Agreement;
- on other grounds provided for by applicable national and international law and this Agreement.
10.5. The financial arrangements of the Parties must be made no later than 5 (Five) banking days from the date of termination of the Agreement. In the event of a unilateral refusal to execute the Agreement, the latter shall be deemed terminated in full or in the relevant part upon the expiration of the established deadlines for the corresponding notification.
10.6. The obligations of the Parties to the Agreement, which by their nature must continue to be valid (including obligations with respect to the guarantees provided, confidentiality, settlement of arrangements, but not limited to the indicated ones), remain valid after the expiration of the Agreement until full execution.
- CONDITIONS OF PRIVACY.
11.1. The Parties agree to keep private and confidential the conditions of each concluded Agreement, as well as all information received by one Party from the other Party during the conclusion and execution of such Agreement (the "Confidential Information"), and shall not disclose, divulge or otherwise not to provide such information to any third party without the prior written permission of the Party transmitting this information.
11.2. Each Party will take all necessary measures to protect the Confidential Information with at least the same degree of care with which it protects its own Confidential Information. Access to Confidential Information will be provided only to those employees of each of the Parties for whom it is reasonably necessary for the performance of official duties for the performance of the Agreement. Each of the Parties will oblige such employees to take the same obligations to ensure the safety of Confidential Information as provided for by this Offer with respect to the Parties.
11.4. The Platform Owner has the right to request additional information, such as photocopies of identity documents, registration certificates and constituent documents, or credit cards, if necessary, verify the information about the Contractor or in order to prevent fraud. If such additional information is provided to the Platform Owner, then its use and protection is carried out in accordance with the conditions of clause 11.3 of the Offer.
11.5. The obligation to keep Confidential Information confidential is valid for the duration of the concluded Agreement and for 5 (Five) years after its termination, unless otherwise agreed by the Parties.
- AGREEMENT OF OWN SIGNATURE ANALOG.
12.1. The Parties shall have the right to use facsimile reproduction of a signature or a simple electronic signature when concluding an Agreement, executing Orders, and sending notifications under the Agreement.
12.2 The exchange of documents between the Parties by fax, SMS or email is allowed. At the same time, documents transmitted in this order have full legal force subject to the delivery of the message including them to the recipient.
12.3. When Parties use email, the electronic document sent with its help is considered to be signed by a simple electronic signature of the sender, created using his email address.
12.4. If you use email to send an electronic document, the recipient of the electronic document determines the person who signed the document at the email address used by him/her.
12.5. When using fax or SMS to send an electronic document, the recipient of the electronic document determines the person who has signed such a document using the subscriber's telephone number used by him/her.
12.6. The procedure for applying a simple electronic signature by the Parties is also regulated by the User Agreement concluded by the User during registration.
12.7. By agreement of the Parties, electronic documents signed with a simple electronic signature are recognized as equivalent to paper documents signed with a handwritten signature.
12.8. Any actions committed using a simple electronic signature of a Party are deemed to have been committed by that Party.
12.9. The parties undertake to maintain the confidentiality of the electronic signature key. In particular, the User does not have the right to transfer his/her username and password or provide access to his email to third parties, and is fully responsible for their safety and individual use, independently choosing the method of storage and restricting access to them.
12.10. In case of unauthorized access to the login and password, their loss or disclosure to third parties, the User is obliged to immediately notify the Platform Owner by sending an email from the email address indicated on the Platform.
12.11. In the event of loss or unauthorized access to the email address which is indicated by the User on the Platform, the User is obliged to immediately replace such an address with a new one and report the fact to the Platform Owner by sending an email from the new email address.
12.12. If the SIM card is lost, the User must immediately replace it with a new one and report the fact to the Platform Owner by sending an email from the email address specified when using the Service.
- FINAL PROVISIONS.
13.1. The Agreement, its conclusion and execution is regulated by the current legislation of the Russian Federation. All issues not regulated by the Offer or not fully settled are regulated in accordance with the substantive law of the Russian Federation.
13.2. Disputes under this Offer and / or Agreement shall be resolved in a preliminary complaint procedure. If the Parties fail to reach agreement, the disputes shall be considered in court at the location of the Platform Owner.
13.4. Any notifications and documents under the Agreement, unless otherwise provided by the Offer, may be sent by one Party to the other Party: 1) by email a) to the email address of the User specified in the execution of the Order from the email address of the Platform Owner specified in section 14 Proposals in the event that the recipient is the User, and b) to the email address of the Platform Owner specified in Section 16 of the Offer, from the email address of the User specified by him/her during the execution of the Directive or in his Profile silt; 2) by postl with delivery confirmation or courier service with delivery confirmation.
13.5. In the event that one or more of the provisions of this Offer or the Agreement is invalid for any reason, without legal force, such invalidity does not affect the validity of any other provisions of the Offer or the Agreement, which remain in force.
13.6. Without conflict with the terms of this Offer, the Parties are entitled at any time to draw up a concluded contract in the form of a written document expressing the contents of the Offer valid at the time of its drawing up, the Mandatory documents specified in it and the executed Order.