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AGSTOCK IMAGES, INC. WEBSITE USAGE AND IMAGE LICENSE AGREEMENT

 

NOTICE TO USER: THIS IS A LEGAL AGREEMENT BETWEEN AGSTOCK IMAGES, INC., (hereafter "AGSTOCK IMAGES") AND YOU. “YOU” MEANS THE INDIVIDUAL LISTED AS THE REGISTRANT OF THE AGSTOCK IMAGES ACCOUNT THROUGH WHICH THIS AGREEMENT AND THE LICENSE(S) GRANTED HEREUNDER ARE ENTERED. BY REGISTERING TO USE THIS WEBSITE, YOU AGREE TO BE BOUND BY AND COMPLY WITH ALL THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE APPLICABLE TERMS, DO NOT OBTAIN OR USE ANY IMAGES FROM AGSTOCK IMAGES. If You are obtaining image reproduction rights on behalf of a company, You represent that You have the authority and right to bind the company to the terms contained in this agreement. AGSTOCK IMAGES reserves the right to alter, modify or update these terms of use at any time and You agree to be bound by such modifications, alterations or updates. 

1. Ownership of This Website: This website is owned and operated by AGSTOCK IMAGES.  All elements of the site, including the content and the general design are protected by copyright, trademark and other Unites States and international laws relating to intellectual property.

2. License Grant and Permitted Usage: YOU MUST FIRST REGISTER ON THE AGSTOCK IMAGES WEBSITE TO DOWNLOAD ANY IMAGE, WHETHER FOR COMP USE OR PERMITTED END USE.

Any and all licenses granted by AGSTOCK IMAGES are conditioned upon (i) Your compliance with all provisions of this Agreement, and (ii) AGSTOCK IMAGES’ receipt of full payment by You as identified in the applicable Invoice. Any and all license(s) granted to You hereunder and Your right to use the Image(s) shall immediately terminate upon Your failure to comply with any provision of this Agreement or to make full payment when due, in which case AGSTOCK IMAGES shall be entitled to pursue all other remedies available under copyright and other laws.

Comp Image Use: AGSTOCK IMAGES grants You the right to use Comp images solely for Your internal evaluation to determine whether You intend to obtain a non-Comp license for the Image(s). You may not use Comp images in any manner except for internal evaluation of the applicable Image(s) to determine whether You wish to apply for a license for Rights Managed Image(s) or Royalty-Free Image(s). The Term of the Comp image license is sixty (60) days from the date of download or receipt. You may not copy, distribute, publish, display or otherwise use in any way the Comp images after the Term without obtaining an appropriate Rights Managed Image license or Royalty-Free Image license for that Image(s). If You do not obtain such a license, upon expiration of the Term, You must destroy all copies of the Comp Image(s).

Rights Managed Image Use: Subject to the terms and conditions of this Agreement, AGSTOCK IMAGES grants You a limited, non-exclusive right to use the Rights Managed Image(s) licensed hereunder to create and exploit the End Use solely as specified in the Invoice, and expressly as limited in the terms and conditions herein. AGSTOCK IMAGES reserves all rights not specifically granted in this Agreement. Unless otherwise stated in the Invoice, the license granted hereunder for the applicable Rights Managed Image(s) allows You to use the Rights Managed Image(s) obtained hereunder for one year from the date the applicable Invoice is issued. Except where specifically permitted on the Invoice for the applicable Image(s), You may not distribute, publish, display or otherwise use in any way, the Rights Managed Image(s), including without limitation the End Use after the Term.

Royalty-Free Image Use: Subject to the terms and conditions of this Agreement or as specified in the Invoice, AGSTOCK IMAGES grants You a limited, nonexclusive, perpetual and worldwide right (except as may otherwise be specified on the AGSTOCK IMAGES website) to create and exploit the End Use for any purpose authorized under this Agreement. The rights granted under this Paragraph include the right to make the Royalty-Free Content available to ten (10) separate individuals (cumulatively over the Term) for the sole purpose of manipulating or otherwise using the Royalty-Free Content to create the End Use according to the terms provided herein (“Users”), in any and all media now known or hereafter devised. You must obtain an additional license and pay AGSTOCK IMAGES the applicable one-time flat fee in order to make the Royalty Free Image(s) available to more than ten (10) Users.

3. Restrictions and Unauthorized Uses:

a. Use of any Image beyond the terms of the limited license agreement without first obtaining an additional license, including any electronic reproduction or promotional rights is prohibited.

b. Creation of any derivative use of an Image unless indicated on the invoice is prohibited.

c. Images may not be used as a trademark, or for any pornographic use, unlawful purpose or use, or to defame any person, or to violate any person’s right of privacy, publicity or moral rights, or to infringe upon any copyright, trade name or trademark of any person or entity.

d. You do not acquire, and shall not claim, any rights (trademark, copyright or otherwise) of the Images apart from the End Use.

e. Archiving, republishing, transmitting or use of Images on any database without AGSTOCK IMAGES's prior written consent is prohibited.

f. Copying or publishing any of the Images to a network or bulletin board, or otherwise distributing or allowing any of the Images to be distributed to, or used by, anyone other than the authorized users, without prior written consent from AGSTOCK IMAGES is prohibited.

g. Sublicensing, re-licensing, renting or leasing any of the Images is prohibited.

h. Use of the Images to promote a business that sells or licenses photographic images, or otherwise competes with AGSTOCK IMAGES in any manner is prohibited.

I. Shipping, transferring or exporting any of the Images into any country, or using any of the Images in any manner prohibited by any export laws, restrictions or regulations is prohibited.

j. Unauthorized use of Images constitutes infringement of copyright and other applicable rights and shall entitle AGSTOCK IMAGES to exercise all rights and remedies under applicable copyright and other laws, including monetary damages against all users and beneficiaries of the use of such Images. AGSTOCK IMAGES, in its sole discretion reserves the right to bill You (and You hereby agree to pay) ten (10) times the license fee for any unauthorized use, in addition to any other fees, damages and penalties AGSTOCK IMAGES may be entitled to under this Agreement and applicable law. The foregoing is not a limiting statement of AGSTOCK IMAGES’ or its Image sources’ rights or remedies in connection with any unauthorized use of the Images or breach of the Agreement.

4. Credit: Images used editorially should bear a credit line as follows: ©AGSTOCK IMAGES /photographer’s name.

5. Retention of Digital Files: In producing the End Use authorized hereunder, You shall limit access to the Image(s) to those having a bona fide need to facilitate production or creation of any such authorized End Use. Upon termination and/or expiration of the Term of this Agreement, You agree to cease use of all Images and shall promptly delete or destroy any digital copies, except that You may retain one copy of the permitted work You create incorporating the Content solely as necessary for archival purposes. AGSTOCK IMAGES’ copyright information and Image identification number must be retained with the digital files while You retain them.

6. Protection of Digital Files: If use of Image(s) is permitted on the Internet, or any other online or interactive media, You shall use Your best efforts to protect the Image(s) to ensure that they cannot be copied.

7. Payment Reporting: You hereby agree to and are required to pay AGSTOCK IMAGES for all Images that You obtain under the terms of this Agreement, regardless of whether You use the Content (except as may be provided in Section 9 below entitled “Cancellation/Termination”). This may, as set forth in the applicable Invoice, include an obligation to pay AGSTOCK IMAGES a use based royalty and to submit an accounting or other records verifying Your use of the Images. Payment is due within thirty (30) days of the date the applicable Invoice is issued, or the date specified in the Invoice, whichever comes first. A late payment charge of one and one-half percent (1.5%) per month or the greatest amount allowed under applicable law may be added to any unpaid balance after thirty (30) days. The maximum amount permitted by state law shall be imposed on each returned check.

8. Taxes: You are responsible for the payment of all sales and use taxes, when applicable. AGSTOCK IMAGES does not accept resale certificates without prior written approval and at AGSTOCK IMAGES’ discretion.

9. Cancellation/Termination:

(a) By You: If You cancel rights granted in the Invoice within seven (7) days from the date of the Invoice, You will be charged a fifty dollar (US$50) transaction fee per Image. If the cancellation notice is received more than seven (7) days, but less than thirty (30) days after the Invoice date, a cancellation fee equal to fifty percent (50%) of the amount of the Invoice will be charged. After thirty (30) days, no cancellations will be accepted and You are responsible for and must pay the full amount of the Invoice. For any cancellations, You must also pay any and all service charges, production fees, processing and handling fees and shipping fees. All licenses applicable to the cancellation shall immediately terminate upon cancellation. All cancellations are final.

(b) By AGSTOCK IMAGES: AGSTOCK IMAGES may, without further obligation or any liability to You or any other person or entity, terminate this Agreement and Your license to use the Image(s) by written notice in the event You fail to comply with any provision of this Agreement. Upon any termination, cancellation or expiration of this Agreement, neither You nor any other person or entity covered by the license granted to You under this Agreement shall have any further right to make any use of the Image(s).

10. Copies: At AGSTOCK IMAGES’ reasonable request, You shall provide to AGSTOCK IMAGES free of charge one (1) copy of any use made of the Content as authorized hereunder.

11. Limitation of Liability: Except for any liability which cannot by law be excluded or limited, neither AGSTOCK IMAGES nor its Image sources shall be liable to You or any other third party claiming through You damages arising out of, or relating to this agreement. In no event shall AGSTOCK IMAGES or any of its Image sources total aggregate liability to You or any third party claiming through You arising from this agreement, its termination or expiration, and/or Your use of any image(s) provided hereunder, shall exceed ten (10) times the monetary amount actually received By AGSTOCK IMAGES for the use of the applicable image(s). The foregoing limitations are applicable notwithstanding any failure of essential purpose.

12. Indemnity: You agree to indemnify and hold harmless AGSTOCK IMAGES, and its Image sources, from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys’ fees, arising from the use of an Image or any breach of this agreement.

13. General Disclaimer: AGSTOCK IMAGES grants no rights or warranties with respect to the use of names, trademarks, logos, registered or copyrighted designs or works of art depicted in any image, and You must satisfy Yourself that all necessary rights, consents or permission as may be required for reproduction are secured.

AGSTOCK IMAGES has identified captions for each image to the best of its ability, but cannot be held responsible for erroneous or incomplete caption information.

No model releases or other releases exist on any Images unless the existence of such release is specified in writing by AGSTOCK IMAGES.

Digital files are provided “as is”. AGSTOCK IMAGES makes no representation or warranty, either express or implied, including but not limited to any implied warranties of merchantability, fitness for any particular purpose, quality of image, or compatibility with any computer hardware or other equipment, operating system or software program.

14. Jurisdiction: Any and all disputes, with the exception of copyright claims, arising out of, under or in connection with this agreement, including, without limitation, the validity, interpretation, performance and breach hereof, shall be settled by arbitration in San Francisco, California, pursuant to the rules of the American Arbitration Association. Judgment upon the award rendered may be entered in the highest court of the forum, State or Federal, having jurisdiction. This agreement, its validity and effect, shall be interpreted under and governed by the laws of the State of California. If User of this contract is an agent for or an employee of a non-U.S. company but operates in a place of business in the United States or its territories, said User expressly agrees that any dispute regarding this contract shall be adjudicated within the United States in the manner described here. The United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed, will not govern this Agreement.

Copyright claims shall be brought in the Federal Court having jurisdiction. User agrees to be subject to the jurisdiction of the Federal Court of the Northern District of California.

In any dispute between AGSTOCK IMAGES and You for breach of this Agreement where AGSTOCK IMAGES prevails, AGSTOCK IMAGES shall be entitled to recover its reasonable attorneys’ fees, legal expert fees, court costs, and other legal expenses.

15. Defined Terms:

(a) “Agreement” means, collectively, the terms and conditions (i) herein, (ii) in the

Invoice(s) and (iii) in the Specific Image Web Page(s) applicable to the Image(s) licensed hereunder, all of which are incorporated into this Agreement by this reference.

(b) “Comps” means Image(s) licensed without a fee solely for Your internal evaluation to determine whether the Image(s) is/are appropriate for Your intended use as either Rights Managed Image(s) or Royalty-Free Image(s).

(c) “End Use” means the final work product created with the Image(s) as authorized hereunder and excluding Comp uses.

(d) “Images” means all digital Image files and related informational materials in any medium obtained from or furnished by AGSTOCK IMAGES hereunder, including without limitation related metadata, text, captions, or information.

(e) “Rights Managed Image(s)” means Image(s) licensed for a fee on a per-use basis and expressly designated as “Rights Managed” or “RM” by AGSTOCK IMAGES.

(f) “Royalty-Free Content” means Image(s) licensed for an unlimited number of uses for a one-time flat fee and expressly designated as “Royalty-Free” or “RF” by AGSTOCK IMAGES.

(g) “Term” means: (1) with respect to each license granted hereunder, the term specified herein or in the applicable Invoice and/or Specific Image Web Page, unless earlier terminated as provided herein and, (2) with respect to this Agreement, the term shall end on the earlier to occur of (i) termination or cancellation of this Agreement as provided herein or (ii) the expiration of all licenses issued under this Agreement.

16. Miscellaneous: This Agreement and any listed restrictions constitute the entire agreement between the parties with respect to the subject matter hereof and merge all prior and contemporaneous communications. This Agreement shall not be modified except by a written agreement signed by duly authorized representatives of AGSTOCK IMAGES, provided that no purchase order or similar document issued by You shall modify this Agreement even if signed by AGSTOCK IMAGES. If any provision of this Agreement is found invalid or unenforceable, the remainder of this Agreement shall remain valid and enforceable according to its terms. Accordingly, the parties agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable and in such manner as comes closest to the intentions of the parties to this Agreement as is possible. This Agreement will inure to the benefit of and be binding upon the parties, their successors and assigns, except that You may not assign or transfer this Agreement without AGSTOCK IMAGES’ prior written consent.

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