Standard End User License Agreement
This is a legal agreement (“Agreement”) between Licensee (as defined below) and Publitek, Inc. dba Fotosearch (“Licensor”). By accessing or using the Content (as defined below), Licensee agrees to be bound by the terms and conditions of this Agreement.
Section 1: Definitions
“Content” means any Licensor single image, photograph, illustration, animation, clipart, footage clip, audio clip, font, or any other audio or visual content, whether obtained via download from Licensor’s website or any Authorized Distributor’s (as defined below) website, or delivered via any storage media, and shall include all metadata including keywords, descriptions, and captions associated therewith.
The “Designated Individual” means the one person to which use of the Content is assigned, whether as an individual operating under this Agreement on their own behalf or on behalf of their employer or client; and, in the case of a subscription, the one person to which use of the subscription is assigned, whether as an individual operating under this Agreement on their own behalf or on behalf of their employer or client. If Licensee is not an individual, all access and use of the Content by the Designated Individual shall be deemed an access and use by the Licensee.
“Licensee” means: (i) you, if you are an individual entering into this Agreement on your own behalf, (ii) your employer, if you are entering into this Agreement on behalf of your employer, or (iii) your client, if you are an agent entering into this Agreement on behalf of your client. If you are acting on behalf of your employer or client, you: (i) represent and warrant that you have the full legal right and authority to enter into this Agreement and bind such employer or client, (ii) will use the Content only for the interest of such employer or client, and (iii) agree to be bound by the terms and conditions of this Agreement.
“Authorized Distributor” means any company that Licensor has authorized to distribute Licensor’s Content.
“Enhanced License” means the agreement offered by Licensor in which one or more of the restrictions of this Agreement have been modified for Licensee’s proposed use of the Content.
Section 2: Grant of Rights
Subject to Licensee’s payment of the license fee for the Content and Licensee’s compliance with the terms of this Agreement, Licensor grants Licensee a non-transferable, non-exclusive, non-sublicensable right to use and reproduce the Content, only for the Permitted Uses (“Permitted Uses”) described below. In the case of a subscription or image-pack, this right is granted for the term of Licensee’s subscription or image-pack (the “Term”). No ownership or copyright in any Content shall transfer to Licensee by the grant of the license contained in this Agreement. All rights not specifically granted by this Agreement are retained by Licensor and the copyright holder.
Section 3: Number of Users
This is a single-user license to be used only by the Designated Individual; however, the Designated Individual may transfer files that contain the Content, provided the transfer does not allow others to extract or access the Content as a stand-alone file. The Designated Individual may only use the Content on one (1) computer at any given time. Before accessing the Content in more than one (1) location or permitting additional access to another individual, Licensee must contact Licensor to upgrade its license. In the case of a subscription, the Designated Individual may only use the subscription on one (1) computer at any given time, and may not share personal login information with any other individual. Before accessing the subscription in more than one (1) location or permitting additional access to another individual, Licensee must contact Licensor to upgrade its license. Licensor reserves the right to monitor Licensee’s account and implement any measure to prevent Licensee from sharing personal login information.
Section 4: Permitted Uses
Licensee may, subject to the Restrictions on Use listed below, use, alter, crop, modify, or adapt the Content only in connection with the following permitted uses. Any use of the Content that is not a Permitted Use shall constitute copyright infringement, entitling Licensor to exercise all rights and remedies available to it under copyright laws around the world. Licensee shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party.
1. Print media (provided that such use is not intended to allow the re-distribution or re-use of the Content), including advertising and promotional materials, editorial publications, books, magazines, newspapers, and newsletters, provided the aggregate reproduction of any Content is five hundred thousand (500,000) or less;
2. Ebooks, including multi-seat license electronic books, provided the aggregate reproduction of any Content is five hundred thousand (500,000) or less;
3. Multimedia presentations, including film and video presentations, and broadcast and theatrical exhibitions;
4. Internet, intranet, online or web-based media, provided the resolution of the Content does not exceed 72dpi;
5. Reproductions for personal use, provided they are not for resale, license, or other distribution;
6. Documents in connection with Licensee’s business, such as business cards, letterhead, brochures, catalogs, advertising or promotional posters, displays for use in conventions and trade shows, provided the Content is not incorporated into or functions as a logo, trademark, or service mark and provided the aggregate reproduction of any Content is five hundred thousand (500,000) or less;
7. Derivative works incorporating the Content, provided Licensee acknowledges that the right to produce derivative works incorporating the Content in no way grants to Licensee or any other party any right to the intellectual property or other rights to the Content, and provided Licensee does not use the Content in any electronic template or application, including those that are internet-based, where the purpose is to create multiple impressions of an electronic or printed product, including but not limited to: website designs, presentation templates, electronic greeting cards, or any other electronic or printed matter without obtaining a license for such purpose; and
8. Additional uses approved in writing by Licensor.
Section 5: Restrictions on Use
Licensee may not use or permit the use of the Content beyond the terms of this Agreement without first obtaining an additional license.
Licensee may not:
1. Sublicense, sell, distribute, assign, convey, or transfer the Content, this Agreement, or any of its rights under this Agreement;
2. Sell, license, or distribute its final product in such a way that allows others to extract or access the Content as a stand-alone file;
3. Use or display the Content in any item intended for resale, license, or other distribution or for use in “print on demand” products, including but not limited to t-shirts, postcards, posters, mugs, artwork, etc.;
4. Incorporate the Content into a logo, trademark, or service mark;
5. Distribute, post, or upload the Content online or on a server in a downloadable format or enable it to be distributed via mobile telephone devices;
6. Use the Content in any electronic template or application, including those that are internet-based, where the purpose is to create multiple impressions of an electronic or printed product, including but not limited to: website designs, presentation templates, electronic greeting cards, or any other electronic or printed matter;
7. Use any Content in any way that is in Licensor’s reasonable opinion pornographic, defamatory, obscene, offensive, libelous, or in any way illegal, whether directly or in context or juxtaposition with specific subject matter and/or other materials;
8. Use any Content in any way that infringes on any copyright, trade name, trademark, service mark, or intellectual property;
9. Use Content that depicts a person as part of any use involving sensitive subjects, including, without limitation, topics that may depict the subject matter of the Content in a negative or unfavorable light, that subject persons to ridicule, that imply illegal activities, and topics regarding all sexual issues, feminine hygiene, incontinence, impotence, sexually transmitted diseases, teen pregnancy, abortion and adoption, welfare or economic aid, dating agencies, substance abuse, physical or mental abuse, alcohol, drugs, tobacco, homosexual or alternative lifestyles, political or religious affiliation, medical conditions or procedures, other health and mental health issues, or the disparagement of a person or product;
10. Use Content in any way in connection with or condoning illegal activities of any kind, including unlawful internet gambling;
11. Use Content featuring a model in a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service, without accompanying such use with a written statement that indicates that the person is a model and the Content is being used for illustrative purposes only;
12. Reproduce the Content or any part of the Content, on its own or otherwise, more than five hundred thousand (500,000) times without first obtaining an Enhanced License;
13. Use any Content to promote a business that sells or licenses photographic products, or otherwise competes with Licensor in any manner;
14. Download, stockpile, or otherwise store Content not used within the Term;
15. Remove any copyright, trademark, identification number, or other proprietary right from the Content;
16. Use an automated program to download images; and
17. Ship, transfer, or export any Content into any country where such Content is prohibited, or use any Content in any manner prohibited by any export laws, restrictions, or regulations.
Section 6: Credit
If the Content is used in print media in an editorial manner, the credit line “© Fotosearch.de” must appear adjacent to the Content. If the Content is used in a film, television production, documentary, or similar audio/visual or multimedia product in an editorial manner, the credit line “© Fotosearch.de” must appear in the audio/visual production credits. If the Content is used online in an editorial manner, a link to www.fotosearch.de shall appear adjacent to the Content. Omission of this link shall not constitute a breach of the terms of this Agreement provided that Licensee remedies such omission upon request from Licensor.
Licensor may waive this credit line or link requirement, upon request, via email or other writing.
Section 7: Subscription and Image-Pack Downloads
In the case of a subscription or image-pack, the number of downloads available to Licensee during the Term is determined by the terms of Licensee’s subscription or image-pack. As it relates to this Agreement, the definition of a day is the twenty-four (24) hour period which begins at 12:00 AM Central Standard Time and ends at 11:59 PM Central Standard Time, and the definition of a month is thirty (30) consecutive days. All Content downloaded during the Term must be used within the Term. If the Content was first used in a product or service during the Term, Licensee may continue to use the Content as it was incorporated into the same product or service, in accordance with the terms of this Agreement.
Section 8: Releases and Captions
Licensor grants no rights and makes no warranties with regard to the use of names, people, trademarks, trade dress, logo types, registered, unregistered, or copyrighted designs or works of art or architecture or other forms of intellectual property depicted in any Content, and Licensee must satisfy itself that all the necessary rights, consents, or permissions regarding any of the above, as may be required for reproduction, have been obtained. Licensee acknowledges that some jurisdictions provide legal protection against a person’s image, likeness, or property being used for commercial purposes without their consent. Licensor does not warrant the legality of the Content, the accuracy of caption and keyword information, nor the legality or accuracy of any release information affiliated with the Content.
Section 9: Termination and Revocation
This Agreement is effective until terminated. Licensee can terminate this Agreement by destroying the Content, any related derivative works, and any copies of it or accompanying materials, and ceasing to use the Content and any derivative works related thereto. Licensor reserves the right to automatically terminate this Agreement and revoke the license contained in this Agreement without notice and without refund if Licensee fails to comply with any provision of this Agreement. Upon termination, Licensee must immediately stop using the Content, delete the Content and all copies from all computer systems and storage, and destroy all other copies.
Licensor reserves the right to discontinue Licensee’s use of any Content for any reason and may elect to replace such Content with alternate Content, and this Agreement shall automatically apply to such alternate Content. Upon notice to discontinue the use of any Content, Licensee agrees not to use the Content in the future and shall where possible ensure that its clients and customers do likewise.
Section 10: Electronic Storage
For all Content that Licensee takes delivery of in electronic form, Licensee must retain Licensor’s name and the image number or other identification number associated with the Content as may be included as part of the electronic file. Licensee will take all reasonable measures to safeguard against unauthorized third-party access to the Content. Licensee may make one (1) high-resolution backup copy of the Content for internal back-up purposes. Transfers of files that contain the Content are permitted to third parties integral to the creation of the final product, provided such third parties agree to abide by the terms of this Agreement, and provided such parties understand they have no further rights to use the Content. Upon the expiration or earlier termination of this Agreement, Licensee shall promptly delete the Content from its computer systems and storage.
Section 11: Refund Policy
All refunds are subject to the approval of Licensor. Licensee may be eligible for a refund, at Licensor’s reasonable discretion, for any of the reasons listed below. If a refund is approved, Licensor shall refund Licensee’s payment as a credit on Licensee’s account or to the credit card used to pay the license fee, at Licensor’s discretion.
• Failed download: If, for technical reasons, Licensee is unable to successfully download the Content. Please contact Support to try and resolve the issue prior to requesting a refund.
• Duplicate download: When the identical Content is downloaded by mistake more than one time.
Section 12: Warranty and Disclaimers
Licensee represents and warrants that it has the full legal right and authority to enter into this Agreement and that it will not use the Content in any way that it not permitted by this Agreement. Licensee and the Designated Individual will be jointly and severally liable for any failure of Licensee or the Designated Individual to abide by any term or condition of this Agreement.
THE CONTENT IS PROVIDED “AS IS” AND LICENSOR MAKES NO REPRESENTATION, WARRANTY, OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, REGARDING THE CONTENT OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE PRODUCT WILL MEET LICENSEE’S REQUIREMENTS OR THAT ITS USE OR THE USE OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK REGARDING THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH THE LICENSEE. IN NO EVENT SHALL LICENSOR OR ANY OF ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, AND SUCCESSORS BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, EXEMPLARY, DIRECT, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES; LOST PROFITS OR LOSS OF PROSPECTIVE COMPENSATION, GOODWILL OR LOSS THEREOF; OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF LICENSEE'S USE OF THE CONTENT, OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS, OR LOSSES.
LICENSOR’S ENTIRE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIMS ARISING OUT OF THIS AGREEMENT OR IN CONNECTION WITH LICENSEE’S USE OF OR INABILITY TO USE THE CONTENT, OR OUT OF LICENSEE’S ACTIONS IN DOWNLOADING THE CONTENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL, TO THE EXTENT PERMITTED BY LAW, BE LIMITED TO THE REPLACEMENT OF THE CONTENT. ALL CLAIMS MUST BE BROUGHT WITHIN TWELVE (12) MONTHS OF THE DATE THAT LICENSEE DISCOVERED THE CLAIM, OR SHALL BE WAIVED.
THE REPRESENTATIONS AND WARRANTIES MADE BY LICENSOR IN THIS AGREEMENT APPLY ONLY TO THE CONTENT AS DELIVERED BY LICENSOR AND WILL BE INVALID IF THE CONTENT IS USED BY LICENSEE IN ANY MANNER NOT SPECIFICALLY AUTHORIZED IN THIS AGREEMENT OR IF LICENSEE IS OTHERWISE IN BREACH OF THIS AGREEMENT.
YOU MAY HAVE ADDITIONAL RIGHTS UNDER SOME STATE LAWS.
Section 13: Indemnity
Licensee agrees to defend, indemnify, and hold Licensor and its parent, subsidiaries, affiliates, and image providers and their respective officers, directors, and employees harmless from all claims, damages, liabilities, cost, and expenses (including reasonable attorneys' fees and costs), arising out of or as a result of (i) Licensee’s failure to abide by any restriction regarding the use of Content; (ii) claims by third parties relating to Licensee's use of any Content outside the scope of this Agreement; or (iii) any other breach by Licensee of this Agreement.
Section 14: Miscellaneous
Jurisdiction and Attorneys’ Fees. This Agreement will be governed and construed in all respects by the laws of the State of Wisconsin, U.S.A., without reference to its laws relating to conflicts of law. Any dispute, controversy, or claim between the parties arising out of or related to this Agreement shall be settled before the Circuit Court of Waukesha County, Wisconsin, U.S.A., which shall be the only proper venue for any dispute, controversy, or claim arising hereunder, and each party hereby consents to the exclusive jurisdiction to such court to hear all disputes, controversies, and claims, and consent to service of process by registered mail or overnight courier with proof of delivery. To the extent that it would otherwise apply, the United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. If Licensor is obligated to go to court to enforce any of its rights, Licensee agrees to reimburse Licensor for its legal fees and disbursements if Licensor is successful. The parties agree that this Agreement has been and shall be written in the English language.
Assignment. Licensor may assign or transfer this Agreement. Licensee may not assign or transfer to anyone else the rights granted to Licensee in this Agreement without the prior written consent of Licensor.
Severability. If one or more of the provisions contained in the Agreement is found to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not be affected. Such provisions shall be reformed only to the extent to make it enforceable.
Waiver. No action of Licensor, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of Licensor in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of those rights or remedies on any other occasion, and it will not be construed as a waiver of any other right or provision.
Taxes. Licensee shall be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of Licensee’s use of the Content or as a result of the license granted to Licensee.
Entire Agreement. This Agreement contains all the terms of the agreement between Licensor and Licensee concerning the use of the Content and no term or conditions may be added or deleted unless made in writing and signed by Licensor. Licensor shall have the right to modify the terms of this Agreement at any time, and such modifications will be deemed effective when posted on Licensor’s website. Licensee agrees to be bound by such modifications; however, if such modifications are not acceptable to Licensee, Licensee may terminate this Agreement in accordance with Section 9. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other writing sent by Licensee, the terms of this Agreement shall govern.
Revision date: June 28, 2010