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| | Index Stock License Agreement Index Stock Rights Managed End User License Agreement
INDEX STOCK IMAGERY LICENSING TERMS AND CONDITIONS
This document together with any Invoice (as defined) provided now or hereafter (collectively, the "Agreement") govern your rights and obligations concerning delivered Image(s).
1. Definitions. "You" means the Client. "INDEX" means Index Stock Imagery, Inc. "Image" means any image and associated material provided by INDEX. "Digital Image" means any Image provided in digital format except for a Royalty-Free Image. "Film-based Image" means any positive or negative transparency, slide or print. "Royalty-Free Image" means any Image that INDEX identifies in writing as royalty-free. "CD" means any CD-ROM containing Royalty-Free Images. "Invoice" means a physical or electronic invoice that grants usage rights for a stated fee to an Image identified by Image Number.
2. Acceptance. You will be deemed to have accepted the entirety of the Agreement upon your: a) using INDEX's online systems or websites; b) receipt of an Image; c) using a CD; and/or d) paying any fee.
3. Grant. Upon issuance of an Invoice, INDEX will grant you a non-transferable license (a "License") strictly limited to the Invoice©–s express terms and conditioned upon: a) your acceptance of all the terms of the Agreement; b) your obtaining all necessary releases and permissions; and c) your timely payment of all fees. No License shall be granted, and any previously granted License terminated, upon your failure to agree to, or your breach of, any terms of the Agreement. Usage terms for Royalty-Free Images will additionally be governed by Paragraph 17. INDEX reserves all rights not expressly granted.
4. Unlicensed Use. Without a License, Images are provided solely for your review, and you may not tamper with or remove a Film-based Image from its mount or sleeve (subject to a $250 fee). If you make, or if you knowingly or negligently permit any third party to make, any unauthorized use of an Image including a use that exceeds your License, you will be liable for three times the market value of such use, plus reasonable legal fees and costs. This paragraph shall not limit any other rights or remedies of INDEX.
5. Restrictions on Use. Unless stated in writing, Images are licensed with no rights protection on a non-exclusive basis. Except for Royalty-Free Images, usage is strictly limited to the restrictions specified on the Invoice. Except as permitted in writing, you may not prepare derivative works or composite images; or license, sublicense or transfer any right to any Image.
6. Payment. Payment is due or upon receipt of Invoice. Payments later than 30 days from receipt are subject to late fees of the lesser of 2% percent per month or the maximum legal rate.
7. Returns and Holding Fees. You must return each Film-based Image within 30 days unless otherwise agreed in writing. Immediately upon the termination of your permitted use, you shall provide INDEX with written confirmation of the destruction or erasure of any Digital Image and, except for CD©–s, you shall return all other physical media (subject to a $50 fee per non-return). A holding fee $20 per week will be charged for each Image not returned, or destroyed or erased with written confirmation, as required.
8. Unreturned or Damaged Images. Images must be carefully maintained and, except for Digital Images or CD©–s, returned at your expense. Upon receipt of a Film-based Image by you or your agent (including any delivery service engaged by you) and until its return, you shall be strictly liable as an insurer for its non-return or damage. In the event of any such loss, you agree to reimburse INDEX the following fair and reasonable values as liquidated damages: $2,000 for each original Film-based Image; $200 for each duplicate Film-based Image; and $4,000 for each original Film-based Image that has appeared in a catalog.
9. Ownership. The Images are the property of INDEX and/or its suppliers. You shall not acquire any right, title or interest to any Image, CD or portion thereof, except as expressly granted in writing.
10. Copyright Notice. Images published for editorial, educational or non-promotional use shall include a copyright notice in the format provided. If none is provided, INDEX will provide upon request. If you omit such notice, you shall pay liquidated damages of triple the stated License fee.
11. Trademarks. Except as part of required copyright notices, you may not use INDEX©–s trade or service marks without written consent. You may not use any Image or portion thereof as a trade or service mark.
12. Releases. No releases exist unless stated in writing or provided by INDEX. NOTWITHSTANDING THE FOREGOING, INDEX DISCLAIMS ALL WARRANTIES CONCERNING THE VALIDITY OF ALL RELEASES. IF INDEX ERRONEOUSLY ASSERTS THE EXISTENCE, SCOPE OF OR VALIDITY OF A RELEASE, INDEX©–S LIABILITY IS LIMITED TO THE USAGE FEE PAID FOR THE APPLICABLE IMAGE. You are solely responsible for and shall obtain necessary releases concerning the subject matter of the Images and the rights to any proprietary material depicted therein. INDEX grants no rights until you obtain all necessary releases, and you will provide proof thereof upon request.
13. DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED IN WRITING, INDEX DISCLAIMS ALL IMPLIED OR EXPRESS WARRANTIES CONCERNING ANY IMAGE AND CONCERNING INDEX©–S ONLINE SYSTEMS OR WEBSITES INCLUDING WITHOUT LIMITATION:
A) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF UNINTERRUPTED SERVICE;
B) WARRANTIES CONCERNING AN IMAGE©–S SUBJECT MATTER OR UNDERLYING RIGHTS TO PROPRIETARY MATERIAL DEPICTED THEREIN;
C) WARRANTIES CONCERNING THE ACCURACY OR VALIDITY OF ANY RELEASES, CAPTIONS OR OTHER INFORMATION PROVIDED WITH AN IMAGE;
D) WARRANTIES CONCERNING THE USE OF NAMES, TRADE OR SERVICE MARKS, LOGOS, DESIGNS OR WORKS OF ART DEPICTED IN ANY IMAGE; AND
E) WARRANTIES CONCERNING THE FORMATTING OF A DIGITAL IMAGE. YOUR SOLE AND EXCLUSIVE REMEDY FOR RECEIPT OF A DEFECTIVE DIGITAL COPY IS THE REPLACEMENT OF THE DIGITAL COPY OR REFUND OF FEE, AT INDEX©–S OPTION.
14. Indemnification. You may not use any Image in any manner, or in connection with any material, that is unlawful, defamatory, obscene, pornographic or that infringes any trade or service marks, rights of privacy or publicity, or other rights of third parties. You will indemnify, defend and hold harmless INDEX, its affiliates, suppliers, and their agents (collectively, "Affiliates") against all claims, liabilities, damages, costs and expenses, including reasonable legal fees, arising from or relating to: a) any breach by you of the Agreement; b) any alteration or unauthorized use by you of any Image; c) any claim of infringement of a third party©–s right to privacy or publicity, where i) Index has not expressly asserted in writing the existence of a release; or ii) your use exceeds the use permitted by any existing release.
15. LIMITATION OF LIABILITY. NEITHER INDEX NOR ITS AFFILIATES SHALL BE LIABLE FOR:
A) ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THE USE OR LICENSE OF ANY IMAGE OR CD, EVEN IF INDEX OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR B) FOR ANY DAMAGES WHATSOEVER FOR THE USE, OR INABILITY TO USE, ANY ROYALTY-FREE IMAGE OR CD. IN NO EVENT SHALL INDEX©–S OR ITS AFFILIATES©– LIABILITY FOR ANY CLAIM WHATSOEVER EXCEED THE SUM PAID BY YOU TO INDEX FOR THE USE OF THE RESPECTIVE IMAGE. Some disclaimers and Limitations of liability might not apply to you to the extent they are not permitted by local law.
16. Condition of Images. You agree to carefully examine each Image or scan for physical defects before use or reproduction. NEITHER INDEX NOR ITS AFFILIATES SHALL BE LIABLE FOR ANY LOSS OR DAMAGE TO YOU OR ANY THIRD PARTY ARISING FROM ANY PHYSICAL DEFECT IN ANY IMAGE, CAPTION OR SCAN IN CONNECTION WITH USE OR REPRODUCTION
17. Royalty Free Terms. For Royalty-Free Images, the terms of this paragraph shall apply in addition to the other terms of the Agreement; this paragraph©–s terms shall prevail in the event of any conflict. For Royalty-Free Images, Index grants you a non-exclusive, non-transferable right to use solely in: a) "Printed Materials," as part of promotional, packaging or editorial material, and in items intended for distribution that incorporate the Image(s) in their design; b) "Broadcast Video"; and c) "Digital Media" (limited to display resolutions less than 640 x 480 pixelsú72 dpi) in or as part of World Wide Web sites, or of computer, software, audiovisual, multimedia or CD-ROM products. Additionally, you may modify or create derivative works from the Royalty-Free Images if all conditions of the Agreement are met. You may only use the Royalty-Free Image(s) in work that is created for you, or for your employer, direct client or customer, who must be the end-user of your work. The Agreement does notpermit you to:
i) Loan, license, or transfer the right to use the CD or any Image except to the extent that a Royalty-Free Image is incorporated by you into Printed Materials, Broadcast Video or Digital Media; ii) Simultaneously use the CD or any Image(s) on more than one computer, or on a network system; iii) Distribute the CD or any Image on a computer bulletin board or any online or Internet service except as expressly permitted; or iv) Use any Royalty-Free Image to promote an image product or a business that is an image provider.
18. Miscellaneous. INDEX may upon reasonable notice inspect your records to ensure compliance hereof. The Agreement inures to the benefit of and is binding upon the parties and their heirs, successors, assigns, and representatives. No failure of a party to exercise or enforce rights hereunder will act as a waiver of those rights. The Agreement contains all the terms of the agreement between the parties concerning its subject matter, and it supersedes any prior agreement. The Agreement may only be modified, or any rights under it waived, by a writing executed by the party against whom such modification or waiver is asserted. The Agreement shall be governed by New York law without regard to choice of law principles. The parties consent to the exclusive jurisdiction of the courts located within New York County to resolve any disputes arising hereunder. You shall be responsible for INDEX©–s reasonable attorney©–s fees, witness fees, and other costs arising from your breach of the Agreement. Any invalidity or unforceability of any provision hereof shall not modify or affect any other term or provision. Headings are for convenience only and shall not be used to construe the Agreement. You may not assign the Agreement or transfer any right to use an Image. Time is of the essence in the performance of your obligations under the Agreement.
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19. Additional rights and/or upgrades are available. If you are unsure of your rights under the Agreement, please contact customer service by calling 800-690-6979.
The Index Stock Royalty Free End-User License Agreement
The following is a legal Agreement between you (the "Licensee") and Index Stock Imagery, Inc. ("Index").
Please read this Agreement carefully before using the accompanying image CD-ROM (the "CD") or downloading any Royalty Free Image (the "Image" or "Images"). By using the CD or downloading an Image, you agree to be bound by this Agreement.
1. The entire contents of the CD (including without limitation the accompanying Software and Documentation) and the Image(s) are copyrighted, proprietary and protected by United States law, international treaty provisions and other applicable laws. All rights not expressly granted are reserved. Your right to use the CD and Image(s) is conditioned upon your payment of any applicable fee prior to use and your compliance with the terms of this Agreement.
2. By this Agreement, Index grants you a non-exclusive, non-transferable right to use the Image(s) or the Images on the CD solely in:
A. "Printed Materials," as part of advertisements; editorial or promotional copy; brochures; reports; newsletters; packaging; and items intended for resale or complimentary distribution that incorporate the Image(s) in their design such as books, clothing, calendars, and CD packaging;
B. "Online and Broadcast Video Media," limited exclusively to World Wide Web site display, online display and broadcast video; provided however that only low-resolution versions of Images (no greater than 640 x 480 pixels - 72 dpi) may be displayed on any World Wide Web site or online; and
C. "Offline Digital Media" in or as part of computer, audiovisual and multimedia use; software; multimedia programs; and CD ROM products; provided however that only low-resolution versions of Images (no greater than 640 x 480 pixels - 72 dpi) may be displayed on Offline Digital Media.
3. You may modify, adapt or create derivative works and publish the Image(s) in or on Printed Materials, Online and Broadcast Video Media, and Offline Digital Media, provided all conditions of this Agreement are met, including section 5G (below). Your use of the Image(s) is not limited by the number of items produced, circulated or sold.
4. You may only use the Image(s), or include the Image(s) in Printed Materials, Online and Broadcast Video Media or Offline Digital Media that are created for yourself, or for your employer, direct client or customer, who must be the end-user of your work.
5. This Agreement specifically does not permit you to:
A. Loan, rent, sell, sub-license, lease, or otherwise transfer the right to use the CD or any Image(s) to any other person or entity, except to the extent that any such Image has been incorporated by you into Printed Materials, Online and Broadcast Video or Offline Digital Media. Images may not be distributed or sold individually - they must be incorporated into these items;
B. Use or copy any Image or CD (or any portion thereof) in any manner, except as permitted by the express terms of this Agreement;
C. Use any Image or the CD in any form of pornography, or in a defamatory, fraudulent or illegal manner;
D. Simultaneously use the CD or any Image(s) on more than one computer at a time (multiple use), or on a network system without first obtaining a license upgrade from Index;
E. Distribute any Image on a computer bulletin board or any other form of online or Internet-accessible service except as expressly permitted herein;
F. Use any Image or any portion thereof as a trademark or service mark, or claim any proprietary rights in any Image, or any portion thereof; or
G. Produce any advertising or promotional material containing any Image with the intent to promote an image product or to promote a business that is an image provider.
6. You agree to indemnify, hold harmless and defend Index, and its employees, directors, suppliers, agents and affiliates, against any damages or liability of any kind including attorneys¹ fees arising from any use of any Image or the CD other than the permitted uses specified in this Agreement.
7. Neither Index not any of its directors, employees, suppliers, agents or affiliates shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use, any Image or the CD.
8. This Agreement shall be governed by the laws of the State of New York without regard to conflict of laws rules. Venue for any action respecting this Agreement, any Image, the CD or their use or attempted use shall be in the State and Federal courts sitting in New York County, New York, and you hereby consent to the jurisdiction of such courts.
9. Additional rights and/or upgrades are available. If you are unsure of your rights under this Agreement, please contact customer service by calling 800-690-6979.
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