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Visualphotos License Agreement

Introduction

  This License Agreement sets out the terms and conditions controlling your access and use of any content on the VisualPhotos site, or otherwise belonging to VisualPhotos. Please read  it carefully and thoroughly and contact us if you do not understand anything herein,  if you wish to use the content in a manner not specifically  authorized under this Agreement, or if you have any questions..

  By browsing or obtaining any Content from Visualphotos, directly or via the VisualPhotos Web Site, you agree to be bound by this Agreement. If you choose not to be bound, you may not use the Web Site and/or download and/or use Content from this Web Site.

In this Agreement:

“Comps” means a preliminary design or sketch or comprehensive sample or rough draft showing layout and placement in a graphic design project.

"Content"  means all images, photographs, footage, illustrations and other visual, graphic, video, audio or other content and related materials in any medium, furnished by Visualphotos hereunder, including related text, captions, or information.

“EULA” means the End User License Agreement  available for review prior to downloading and paying for content.

  “End Use” means the publication or application in which the Content is used.

  “Web Site” or “Site”  means the Visualphotos web site www.visualphotos.com, or sub-domains incorporated into this url, or any alternative or additional site  on the worldwide web or other electronic  network where visualphotos may post or offer Content.

  General Terms

Content is Licensed by Miller Triwaks Media, Ltd., d.b.a. “VisualPhotos” (“VisualPhotos”), acting for its own accord, or as sub-licensee for the copyright owner or owners or their agency. Billing is made by Visualphotos, LLC on behalf of VisualPhotos.

  Visualphotos has multiple agreements to represent copyright owners, directly or through agencies or collections that represent them and is authorized to license their Content through the Web Site.  Some of the Owners, Agencies or Collections require that you agree to the terms of their EULA. Different contents and different collections are governed by different EULA. The relevant EULA, if applicable, together with the terms of this License Agreement set out the legal framework and form a binding agreement ("Agreement") between You and Visualphotos under which you may use the Content. In case of conflict between any part of the EULA and any part of the License Agreement, the relevant parts of the EULA  shall prevail.  Where no EULA exists, only the term of this License Agreement apply.

In adition, to the EULA and terms License Agreement, the Visualphotos invoice is incorporated by reference into this Agreement, and all references to the Agreement shall include the Invoice.

If you are entering into this Agreement on your employer’s behalf, this Agreement applies both to your employer and to you.

Any and all licenses granted by Visualphotos are conditioned upon your compliance with all provisions of this Agreement and Visualphotos’ 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 Content shall  come into effect only upon full payment of the License Fee, unless specifically agreed otherwise. Additionally, any license will  immediately terminate upon your failure to comply with any provision of this Agreement or (if we have agreed that the license shall come into effect prior to full payment) upon your failure to make full payment when due, in which case Visualphotos shall be entitled to pursue all other remedies available under copyright and other laws.

Use of Content:

You may use the content subject to this Agreement, the Invoice and the EULA. Permitted Use of Content varies according to the License you purchase. Please read below to understand the different License Terms that apply to your purchase, depending on the license you purchase.

  Terms that apply to Content identified as:

1.       Royalty Free (RF)

General: Royalty Free Content (RF) is marked Royalty Free or RF. It is licensed once per end-user, non-exclusively either as single file or in bulk (i.e. Virtual Disc) as the case may be. Most common uses are covered by the RF EULA but some restrictions apply so please check the EULA. You may do so before checkout by clicking the word "Terms" in the checkout stage. The price is determined by the  copyright owner, quality of the digital file and the resolution. This information is visible online.

  Use: Subject to the terms and conditions of this Agreement Visualphotos grants you a limited, non-exclusive, perpetual and worldwide License (except as may otherwise be specified in the invoice or EULA) to create and exploit the RF End Use for any purpose authorized under this Agreement.

  Share: You can make the RF Content available to up to ten (10) separate individuals for the sole purpose of reviewing and/or  creating an End Use for you using the RF Content, in any and all media now known or hereafter devised. If you wish to make the RF Content available to more than 10 people you must obtain an additional license and pay Visualphotos the applicable fee.

          2.       Rights Managed (RM)

General: Rights Managed Content (RM) marked Rights Managed or RM. This  Content  is licensed for a specific, designated purpose. The price is calculated based on media (i.e. newspapers, brochure, web, etc.) and exposure (i.e. print run, audience, territory, etc.) and other relevant factors. For an additional fee, RM Content may be licensed with some exclusivity making this perfect for users who want to be sure others won’t be using the same Content while they use it (i.e. exhibition, campaign, etc). An RM License is specific and any use that isn’t included in the license is prohibited. Once granted, the rights are recorded for your protection. To use RM Content after the original license term or in different media or and use you have to apply again so the rights may be cleared and recorded again.

  Use: Subject to the terms and conditions of this Agreement, Visualphotos grants You a limited, non-exclusive  license  to use the RM Content licensed hereunder to create and exploit the End Use solely as specified in the Invoice, and expressly as limited in the Restrictions and the terms and conditions herein or in the EULA. Visualphotos and/or the  copyright owner of Content and/or his agency reserve all rights not specifically  licensed under  this Agreement. Unless otherwise stated in the Invoice, the license granted hereunder for the applicable RM Content allows you to use the RM Content obtained hereunder for one year from the date the applicable Invoice is issued. Except where specifically permitted on the Invoice for the applicable Content, you may not distribute, publish, display or otherwise use in anyway, the RM Content, including without limitation the End Use after the Term.

            3.       Micro Stock (MS)

General: Micro Stock Content (MS) is licensed for personal or commercial, non-exclusive, non-transferable use. Subject to the terms of this Agreement, the invoice and the EULA there are  two types of licenses that cover MS Content. The Standard License is more limited and personal in nature, while the Enriched License opens up more possibilities for commercial use. Please note that if a use is not listed in the chart it means that the use is prohibited unless you  apply for and receive written  permission and an invoice. Please also read the relevant Remarks  column which applies to both Standard and Enriched Licenses.

    Additional terms and restrictions that apply to ALL Content:

  Comps:

Subject to the terms and conditions of this Agreement (including any applicable Invoices, EULA and specific restrictions on the Visualphotos site) Visualphotos grants you the right to use Comps solely for your internal evaluation to determine whether you intend to use the Content and obtain a license for the Content. You may not use Comps in any manner except for internal evaluation of the applicable Content. Unless otherwise stated in the relevant Invoice, the term of the Comps 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 Comps after the Term without obtaining an appropriate invoice and license or written consent from Visualphotos. If you do not obtain such a license, upon expiration of the term, You must destroy all copies of the Comps Content.

  Selling, Sharing, etc.:

Unless you  obtain a specific and separate non-standard License in writing, you may not sell, rent, loan, give, share, sublicense, make available, display or otherwise transfer to anyone the Content or any right to reproduce the Content. doing so shall constitute copyright infrinegement and visualphotos shall seek maximum  damages  and other remedies permissable under the applicable law. this clause shall survive termination of the agreement.

  Who May Use the Content:

Subject to all other Terms of this Agreement, only You may use the Content and the End Use must be solely for your own use or your direct Client’s End Use. Your employees and contractors (if any) may use the Content as necessary to create the End Use as provided herein, provided that each such employee or contractor has agreed to comply with the terms hereof, and further provided that you remain jointly and severally liable for any breach of the terms of this Agreement by such employee(s) and/or contractor(s)., and except insofar as it has been incorporated by you into the permitted End Use, you may not use the Content for any other use.

  Modification of Content:

Special ethical considerations apply to editorial, news, and fine art Content or even commercial works of art with model release. When using such Content, you may not make or permit any modifications to or alterations of the Content (except for standard color correction or minor cropping for space limitations) or to the caption information unless specifically agreed in writing by Visualphotos. Visualphotos shall obtain proper rights and if possible shall grant such modification in writing at no additional cost to you.

  Unauthorized Use:

Without limitation, Content may not be utilized as a trademark or service mark, or logo or for any pornographic use, unlawful purpose or use, or to defame any person, or to violate any person’s right of privacy or publicity, or to infringe upon any copyright, trade name, trademark, or service mark of any person or entity. You may not imply or make others believe that models endorse a product or service. Unauthorized use of the Content constitutes copyright infringement and shall entitle Visualphotos and/or the originators of the Content, to exercise all rights and remedies under applicable copyright law, including an injunction preventing further use and monetary damages against all users and beneficiaries of the use of such Content. Visualphotos in its sole discretion reserves the right to bill you (and you hereby agree to pay) ten (10) times the normal license fee for any unauthorized use, in addition to any other fees, damages, or penalties Visualphotos may be entitled to under this Agreement or applicable law. The foregoing is not a limiting statement of Visualphotos rights or remedies in connection with any unauthorized use.

  Sensitive Subjects:

You may not imply or make others believe that models are involved in unsocial, criminal or sensitive topics in their real life. Any license granted by Visualphotos shall not constitute a representation that the Content is compatible for use with any other material. You are solely responsible for the use of the Content in combination with any other material, and you agree not to use the Content with sensitive topics without Visualphotos separate written consent. Sensitive topics include, without limitation, topics that may depict the subject matter of the Content in a negative or unfavorable light or subject persons to ridicule, and topics regarding all sexual issues, substance abuse, physical or mental abuse, alcohol, drugs, tobacco, AIDS, cancer, or serious physical or mental ailments, or the disparagement of a person or product. Certain Content may be available for use with sensitive subjects for an additional fee. You must contact Visualphotos for additional information prior to any use of the Content with any sensitive topic.

  Model Release, Property Release and Clearances:

The rights Visualphotos grants to you do not include a license to any persons, places, property, or subject matter depicted in any Content, which may be subject to copyrights, trademarks, rights of publicity, moral rights, property rights or other rights belonging to third persons. You shall assume that no model or property releases, or other releases or licenses exist in connection with any of the Content, unless specifically stated in a separate writing by Visualphotos. Visualphotos makes no representations or warranties that it owns or licenses any rights nor does Visualphotos grant you any rights including copyright, trademarks, or rights of publicity belonging to any person, place, property, or subject matter depicted in Content. Further, Visualphotos makes no representation or warranty as to the accuracy of any information provided with the Content. You are solely responsible for determining whether your use of the Content requires the consent of any third party or the license of any additional rights, and you should not rely solely on the information provided by Visualphotos. If you are unsure whether additional rights are needed for your use, you are responsible for consulting with competent legal counsel.

Content designated as “model released” means that the person or the model in the Content has signed a release permitting reproduction of the Content, subject to the restrictions and Unauthorized Use sections contained in this Agreement, including without limitation Sensitive Subject uses. If Visualphotos erroneously advises you that Content is model-released when it is not, Visualphotos liability shall be limited to the amount you paid Visualphotos for use of the Content. If Content depicts a person and is used in a manner that implies the use or endorsement of a product or service by that model, you must indicate that the person depicted is a model and used only for illustrative purposes. Any license granted by Visualphotos is conditioned upon your obtaining all necessary third-party rights, releases and permissions. You agree to provide Visualphotos with proof of such releases and permissions upon request.

  Payment:

Prices for use of Content shall be determined solely by Visualphotos; if you are unsure as to the price applicable to your intended use, you must contact Visualphotos prior to obtaining or downloading Content. Payment is due immediately after your receipt of an invoice. A late payment charge of one and one-half percent (1.5%) per month may be added to any unpaid balance. The maximum amount permitted by state law shall be imposed on each returned check.

  Taxes:

You are responsible for the payment of all sales, use or withholding tax, when applicable.

  Cancellations:

If you cancel rights granted in the Invoice prior to using the Content and within seven (7) business days from the date of the invoice, you will be charged the equivalent of US$50 transaction fee per each individual file or piece of Content. If the cancellation notice is received more than seven (7) but less than thirty (30) business days after the invoice date, a cancellation fee equal to fifty (50%) percent of the amount of the Invoice will be charged. AFTER THIRTY DAYS, NO CANCELLATIONS WILL BE ACCEPTED AND THE FULL AMOUNT OF THE INVOICE MUST BE PAID. For any cancellations, you must also pay the full service charge, reproduction fee, processing and handling fee and shipping fee (if applicable). No license to use the Content will be granted upon cancellation; all cancellations are final.

  Samples:

At Visualphotos request, you shall provide to Visualphotos free of charge, a copy of any printed product or publication you create using the Content, or if electronic use is permitted, the URL and any required passwords or the screen captures for our records.

  Publication Right:

Visualphotos shall exclusively retain all publication rights arising from your use of our Content.

  Indemnification:

You agree to indemnify and defend Visualphotos against all claims (including without limitation claims by third parties), liability, damages, costs and expenses, including reasonable legal fees and expenses, arising out of or related to (i) a breach of this Agreement, the EULA and any restrictions, (ii) the use of Content either alone or in combination with any other material, (iii), your failure to abide by any restriction regarding the use of Content.

  Credit Line and Copyright Notice:

For editorial uses, you shall include a copyright notice and credit adjacent to the Content (in the format: "© Artist’s name/Agency/Visualphotos" with each publicly distributed element of the Content. Receiving credit is a material aspect of the Agreement for Visualphotos, and in editorial uses of Content, you agree to pay triple the invoice amount if you do not provide such credit and copyright notice. For commercial uses, you shall include the credit described above when customary and appropriate.

  Visualphotos Trademarks:

Except for credits as required above, you may not use the trademarks or service marks of Visualphotos without Visualphotos prior written consent.

  Choice of Law / Jurisdiction / Attorneys' Fees:

Any dispute regarding this Agreement shall be governed by the laws of the United State of America, State of Nevada. Visualphotos alone will make the decision as to the jurisdiction and venue of the courts, as the case and nature of litigation dictates. In case this clause is not admissible due to any local legal conflict or other legal scenario, then the parties agree to be bound and accept the exclusive jurisdiction of the courts of the State of Nevada, Clark County regardless of conflicts of laws. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed. The parties hereto confirm that it is their wish that this Agreement as well as any other documents relating hereto, including notices, has been and shall be written in the English language (Les parties aux presentes confirment leur volonte que cette le convention de meme que tous les documents y compris y tout avis qui s’y rattache soient rediges en langue anglaise). In any dispute between Visualphotos and you where Visualphotos prevails, Visualphotos shall be entitled to recover its reasonable attorneys' fees, legal expert fees, court costs, and other legal expenses.

  Confidentiality:

During this Agreement, Visualphotos may provide you with certain pricing, technical, marketing and other confidential information. You acknowledge that such confidential information encompasses valuable trade secrets and is proprietary to Visualphotos, and you shall maintain the confidentiality of any "confidential information" that Visualphotos may provide to you, and you shall not use or disclose the same without the prior written consent of Visualphotos. "Confidential information" includes any information that is either designated as confidential by Visualphotos or that, under the circumstances surrounding the disclosure, ought in good faith to be treated as confidential by you.

Limited Warranty:

Subject to the restrictions and limitations contained in Visualphotos web site, invoice, EULA or under this Agreement, Visualphotos warrants that it has sufficient rights to grant you the limited license under this Agreement and any accompanying invoice. Additionally, Visualphotos warrants that the digital copy of the Content provided by Visualphotos to you will be free from defects in material and workmanship (but not Visualphotos artifacts inherent in the original Content) for sixty (60) days following delivery; and, Visualphotos will as your sole and exclusive remedy for your inability to use any element of the Content and at its sole discretion, provide you with a replacement of the digital copy of such Content, or refund any fee paid by you to Visualphotos provided you have not made any licensed use the Content. WHILE VISUALPHOTOS MAKES EFFORTS TO USE ACCURATE CAPTION INFORMATION, VISUALPHOTOS DOES NOT WARRANT THAT CAPTION INFORMATION IS ACCURATE. VISUALPHOTOS PROVIDES YOU WITH ITS ONLINE SYSTEM ON AN “AS IS” BASIS. VISUALPHOTOS MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED REGARDING ANY CONTENT, ITS ONLINE SYSTEMS, OR ANY RIGHTS OR LICENSES UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

  Limitation of Liability:

EXCEPT FOR ANY LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED, NEITHER VISUALPHOTOS NOR ANY VISUALPHOTOS AFFILIATE, employee, shareholder, staff or board member SHALL BE LIABLE TO YOU OR ANY OTHER THIRD PARTY CLAIMING THROUGH IT FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR RELATING TO THE USE OR INABILITY FOR YOUR USE OF THE content, WHETHER FRAMED AS A BREACH OF WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, IN TORT, CONTRACT, FAILURE OF ESSENTIAL PURPOSE, OR OTHERWISE. IN NO EVENT SHALL VISUALPHOTOS OR ITS AFFILIATES', AFFILIATE, employee, shareholder, staff or board member LIABILITY FOR YOUR USE OF ANY content PROVIDED HEREUNDER EXCEED THE AMOUNT INVOICED BY YOU FOR THE USE OF THAT conetnt.

  Miscellaneous:

You acknowledge that you have read this Agreement and understand it, and agree to be bound by all its terms and conditions. This Agreement, the EULA, the Invoice 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 Visualphotos, provided that no purchase order or similar document issued by you shall modify this Agreement even if signed by Visualphotos. If Visualphotos performance of any of its obligations hereunder is delayed by labor dispute, war, governmental action, flood, fire, explosion or other act of nature, the public enemy, or any other matter not within Visualphotos reasonable control, then the date for performance shall be extended by the time of such delay. 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. The parties intend that the provisions of this Agreement be enforced to the fullest extent permitted by applicable law. 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 Visualphotos prior written consent.