STARKPHOTO RIGHTS-MANAGED LICENSE AGREEMENT
1. The Agreement. The Agreement between you and STARKPHOTO
consists of (a) the terms and conditions in this document and
(b) the terms and conditions of any invoice provided to you by
STARKPHOTO. These two things constitute "the Agreement"
between you and STARKPHOTO. You
should carefully read the following terms and conditions, as well
as any invoice provided, since you will be deemed to have understood
and accepted the entirety of the Agreement as set forth in these
documents.
2. Definitions.
(a) "Agreement" means the agreement between the
parties as set forth in this document and the invoice, which is
hereby incorporated by reference.
(b) "CD" means any CD-ROM or other medium containing
a rights-managed image.
(c) "Image" means a STARKPHOTO still image,
film, or other visual representation generated optically, electronically,
digitally, or by any other means, including but not limited to,
negatives, transparencies, film imprints, prints, original digital
files, or any reproductions thereof, or any other product protected
by copyright trademark, patent, or other intellectual property
rights, licensed under the Agreement.
(d)
"Invoice" means the computer-generated or pre-printed invoice
provided by STARKPHOTO that sets forth the party contracting as
licensor (STARKPHOTO) and the specific conditions and limitations
on the types and areas of use of a rights-managed image that apply,
in addition to the terms and conditions in this document.
An invoice may include time or other limitations on use;
reproduction rights; the price for the license; and any other
limitations or conditions that apply.
(e) "Reproduction" or "Reproduce" include any form
of copying or publication of the whole or a part of any licensed
image, whether by printing; photography; photocopying; slide projection
(whether or not to an audience); layout or presentation; use in
a production process; electronic, digital, or mechanical means;
use as a reference by an artist or an artist's illustration; or
by any other means. Reproduction
includes the distortion or manipulation of the whole or a part
of an image.
(f) "Rights-Managed Image" means any image that
STARKPHOTO identifies in writing as rights-managed. STARKPHOTO attempts to avoid image conflict between users in the
same industry for the same usage, within a specific time period,
if so desired by requesting an exclusivity option in writing,
by email, or by phone contact.
(g) "You" means the client of STARKPHOTO, and includes
the client's agents, employees, heirs, and assigns.
3. License for Limited Use; Duration; U.S. Use
Only; Comping; Certified Statement.
(a) STARKPHOTO grants you a license to use
and reproduce a rights-managed image identified in the invoice
only to the extent explicitly stated
in the invoice. The invoice
may prescribe conditions or restrictions, such as, but not limited
to, use, medium, period of time, print run, placement, size of
image, territory, and any other pertinent conditions or restrictions.
The license will be non-exclusive
and non-transferable unless specifically provided
otherwise in the invoice. Unless
otherwise specified in the invoice, the license shall be for use
in the United States only and shall be for a maximum of one year. You assume responsibility to contact STARKPHOTO
30 days prior to the expiration of the Agreement in order to request
and negotiate for rights to re-use the image for the same use
as provided in the invoice.
(b) A rights-managed license is conditioned upon
your acceptance of all of the terms and conditions of the Agreement
and your timely payment of all fees.
No license shall be granted, and any previously granted
licenses shall be terminated, upon your failure to comply with
any terms of the Agreement.
(c) If you are acting on behalf of your employer,
the license granted by, and the terms and conditions contained
in, the Agreement apply to your employer and to you, as representative
of your employer. All
rights not granted in the Agreement are specifically reserved
for STARKPHOTO's use and future disposition, without any limitations
whatsoever. If you require
additional rights, or a prohibition or limitation on other uses
of an image, you must request and pay for an additional license.
(d)
Upon request,
you agree to provide STARKPHOTO with a certified statement setting
forth information pertaining to your use and reproduction of the
rights-managed image under the Agreement, including but not limited
to, the number of uses, reproductions, sales, and transactions,
and uses of the rights-managed image in any publication.
(e)
You may use a
comping file (low resolution or watermarked image designated a
comping file by STARKPHOTO) that you download from our website
in order to take a closer look at a particular image or to create
materials for proofing presentations to clients.
The image may be used in materials for PERSONAL, NONCOMMERCIAL,
and TEST or SAMPLE USE for comping and layouts.
A comping file is not licensed for use in final materials
whether distributed inside your company or outside, or to the
public, including but not limited to, advertising and marketing
materials or in any online or other electronic distribution system.
You may transmit a comp digitally or electronically to
your clients for their review. The comp image may not be distributed, sublicensed,
or made available for use or distribution separately or individually
and no rights may be granted to the image.
4. Unlicensed
Use; Modification of License; Infringements.
(a) You agree not to make, authorize, or permit
any use or reproduction of an image or its derivative except as
authorized by the Agreement.
The terms and conditions of the Agreement shall not be
modified without the express written consent of STARKPHOTO.
Any attempt to modify or to deviate from the Agreement
without the express written consent of STARKPHOTO (including but
not limited to expanding or changing the licensed use or reproduction),
shall nullify STARKPHOTO's obligations, representations, and warranties
under the Agreement and you agree to pay an additional license
fee for such use or reproduction, as required by STARKPHOTO.
(b) Use of an image in a manner not expressly authorized
by the Agreement may constitute an infringement of the proprietary
rights of STARKPHOTO or a third party and may result in you incurring
or being responsible for any damages resulting from any such use,
including damages resulting from any claims for infringement of
the intellectual property or proprietary rights of STARKPHOTO
or a third party.
5. Prohibited
Uses.
(a) YOU MAY NOT Use the Image in any unlawful manner or in any way that could be considered
defamatory, libelous, pornographic, obscene, or immoral.
(b) If an image featuring a person is used in a
manner that implies endorsement, use of, or connection to, a product
or service by that model, or in connection with a controversial
subject, or in a manner that could be potentially unflattering,
you must obtain the necessary releases pertaining to that use
and include a statement that indicates that the person is a model
and is used for illustrative purposes only.
(b) You may not make, authorize, or permit
any use of a rights-managed image or its derivative except as
specifically authorized by the invoice.
If the invoice permits creation of a derivative, all rights
to any derivative image shall belong to STARKPHOTO and you may
use such derivative work only as permitted by the invoice and
this document. All copyrights with respect to such derivative work are assigned
to STARKPHOTO, which assignment the parties hereby agree is valid
under the U.S. Copyright Law.
Upon request by STARKPHOTO, you agree to execute a written
assignment of any such copyrights with respect to a derivative
work.
6. Storage;
Back-ups; Return of Images. Unless otherwise provided in the invoice, you may not simultaneously
use an image on more than one (1) computer, or on a network system.
You may not use an image on a server or create any other
image library that permits access to more than ten (10) designated
persons. You may make
a back-up copy for security reasons only.
7. Payment
Terms. No rights are
granted until the invoice is paid in full.
Claims for adjustment of terms must be made to STARKPHOTO
within three (3) days (excluding weekends and
holidays) of the receipt of the invoice. No rights are
granted until the invoice is paid in full.
Payment may be made by credit card or cashiers check only.
8. Cancellation.
If you decide
not to use the rights-managed image, you must advise STARKPHOTO
in writing within five
(5) business days (excluding weekends and holidays) of receipt
of the invoice to receive a full refund.
Refunds shall be permitted only for reasonable cause, as
determined by STARKPHOTO.
9. Copyright.
No ownership
or copyright in any image shall pass to you by the issuance of
the license contained in the Agreement.
Except as expressly set forth in the Agreement, STARKPHOTO
grants you no right or license to the image, expressed or implied.
You agree to provide applicable copyright notice and/or
protection. Upon demand, you shall immediately assign to
STARKPHOTO (or STARKPHOTO's
designee) any copyright of or to the rights-managed image arising
out of the publication of the image.
No copyright information shall be removed from any digital
file.
10. Limited Warranty.
(a)
STARKPHOTO
represents that it has the right to enter into the Agreement and
has the right to grant this license under the Agreement.
(b)
STARKPHOTO
warrants that the image will be free from defects in materials
and workmanship under normal use for a period of thirty (30) days
from the date you download or receive it.
While STARKPHOTO makes every effort to correctly caption
the subject matter of its image, STARKPHOTO does not warrant the
accuracy of such captioning.
(c) STARKPHOTO represents and warrants that:
(i)
It has all necessary
rights and authority to enter into and perform the Agreement in
accordance with its terms, including, but not limited to, the
right and authority to license the use of the image as expressly
set forth in the Agreement, including the rights to license the
copyrights in and to the image on the terms and conditions set
forth in the Agreement.
(ii) The rights of reproduction granted
hereunder do not infringe on any copyrights to the image or moral
rights of any person or entity.
(iii)
All necessary model and property releases have been obtained
by STARKPHOTO except where specifically stated in the Agreement,
STARKPHOTO's website, or other notice from STARKPHOTO.
A copy of any model or property release will be provided
to you upon request so that you can satisfy itself as to the extent
and validity of that release. You understand and agree that the
personal information of that model or property owner will be redacted
for the protection of the privacy of the model or property owner.
(d) STARKPHOTO
makes no representations or warranties as to whether or not any
additional fees or payments may be due to any model depicted in
the image, pursuant to the requirements of any applicable trade
union. You shall
be solely responsible for such additional fees or payments.
(e)
THE
FOREGOING REPRESENTATIONS AND WARRANTIES APPLY ONLY TO THE RIGHTS-MANAGED
IMAGE AS DELIVERED BY STARKPHOTO WHEN USED IN ACCORDANCE WITH
THE TERMS OF THE AGREEMENT AND THE USES EXPRESSLY PROVIDED FOR
IN THE INVOICE.
(f) STARKPHOTO DOES NOT WARRANT THAT THE IMAGE
WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED
OR ERROR FREE. YOU ASSUME
THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE IMAGE
AS USED BY YOU. SHOULD THE IMAGE AS USED BY YOU, PROVE TO BE
DEFECTIVE, YOU (AND NOT STARKPHOTO) ASSUME THE ENTIRE COST OF
ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
(g) STARKPHOTO makes no warranties with regard
to the use of names, trademarks, trade dress, registered, unregistered,
or copyrighted designs or works of art or architecture depicted
in any STARKPHOTO royalty free image.
You must satisfy yourself that all of the necessary rights
or consents regarding any of the above, as may be required for
reproduction, have been obtained.
Certain states do not allow the exclusion of implied warranties,
so the above exclusions may not apply to you. You have specific
rights under this warranty, but you may have others, which vary
from state to state.
11. Indemnification. You agree to defend, indemnify and hold
harmless STARKPHOTO, its employees, suppliers, agents, and affiliates,
against all claims, damages, or liability of any kind asserted
against STARKPHOTO arising out of your use of the image or in
connection with any breach of any of the terms of this Agreement,
including reasonable costs and attorney's fees.
Neither STARKPHOTO nor any of its employees, suppliers,
agents, or affiliates shall be liable for any claims, damages,
or liability, whether direct, indirect, consequential, or incidental,
arising out of your use of the image or in connection with any
breach of any of the terms of this Agreement.
12. Governing Law; Jurisdiction;
Legal Fees and Costs. This
Agreement, its validity and effect, shall be interpreted under,
and governed by, the laws of the State of California.
You agree that the Superior Court, San Diego County, and
the United States District Court for the Central or Southern District
of California are the agreed and appropriate forums for any such
suit, and consent to service of process by registered mail or
overnight courier with proof of delivery. You consent to service
of any required notice or process upon you by registered mail
or overnight courier with proof of delivery.
If STARKPHOTO is obligated to go to court to enforce
any of its rights, or to collect any fees, you agree to reimburse
STARKPHOTO for its attorneys fees, costs, and disbursements if
STARKPHOTO is successful.
13. General
Provisions.
(a) Cessation of Use; Termination; Notice. Immediately upon cessation of your permitted
use, or termination of the Agreement, you shall provide STARKPHOTO
with written confirmation of the destruction or erasure of any
image and, except for CDs, you shall return all other physical
media.
(b) Taxes and duties. You agree to pay and be responsible for any and all sales taxes,
use taxes, value added taxes and duties imposed by any jurisdiction
as a result of license granted to you, or of your use of the image,
under this Agreement.
(c) Photo Credit. If used for editorial purposes STARKPHOTO requires
that the phrase "Photo: ã Starkphoto.com" appear adjacent to an image or on a credit
page. Unless otherwise
agreed in writing, if any image reproduced by you for editorial
purposes (i.e., for any non-promotional purpose)
omits the credit line specified in paragraph 13(c), or any other
credit line specified by STARKPHOTO, an additional fee equal to
twenty percent (20%) of the original amount invoiced shall be
payable by you at STARKPHOTO's discretion. The foregoing fee shall
be in addition to, and not in lieu of, any other rights or remedies
that STARKPHOTO may have at law or in equity.
(d) Project
Samples. If an image
is reproduced, as a condition of use, you agree to send to STARKPHOTO,
at your own expense, two (2) free samples containing a reproduction
of the image within 30 days of use, unless otherwise specified
by the parties in writing.
(e) Restricted Rights to the US Government. If the image is purchased by or provided
to the United States Government then it is provided with restricted
rights. Such restricted rights are defined in the Defense
Department Supplement to the Federal Acquisitions Regulations
("FAR") in paragraph S2.227.19(c)(2) of the FAR. Your use of the
image must be in compliance with all laws and regulations including
those pertaining to currency, trademarks, and moral rights.
(f) Binding Nature and Modification of Agreement;
Rights. The invoice and
the terms and conditions set forth in this document (the "Agreement")
inures to the benefit of, and is binding upon, the parties, their
agents, heirs, successors, and assigns.
Headings are for convenience only.
The Agreement contains all of the terms of the agreement
between the parties concerning its subject matter, and 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 the modification or waiver is asserted.
(g)
Enforcement and Enforceability.
If STARKPHOTO
is required to commence or threaten legal proceedings against
you to enforce any of the terms and conditions of the Agreement,
whether a lawsuit is filed or not, you shall indemnify and hold
harmless STARKPHOTO for the reasonable legal fees and costs incurred
by STARKPHOTO. If any provision of this Agreement is held
to be not enforceable, such provision shall be reformed only to
the extent to make it enforceable.
(h)
Retention of Rights. Any and all rights not specifically granted
by STARKPHOTO under the Agreement are retained by STARKPHOTO,
including without limitation, copyright.
You cannot, through this license or otherwise, establish
your own rights to any image or part thereof.
If you have any questions regarding the applicability of
the Agreement or regarding making a modification to it, contact
STARKPHOTO.
(i) Discontinuance of Image. STARKPHOTO reserves the right to elect
at a later date to replace the image with an alternative for any
reason. Upon notice of such replacement, the license for
the replaced image terminates for any products that do not already
exist, and this license automatically applies to the replacement
image. You agree not to use the replaced image for future
products and to take all reasonable steps to discontinue use of
the replaced image in products that already exist.
14. Entire Contract. YOU ACKNOWLEDGE THAT YOU HAVE READ THE INVOICE
AND THE FOREGOING TERMS AND CONDITIONS, WHICH CONSTITUTE THE AGREEMENT
BETWEEN THE PARTIES, AND THAT YOU UNDERSTAND THE AGREEMENT, AND
AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER
AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT
BETWEEN YOU AND STARKPHOTO, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR
AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU
AND STARKPHOTO RELATING TO THE SUBJECT OF THIS AGREEMENT.
THE EXPLANATIONS TO FAQ'S AND OTHER EXPLANATIONS
AND CONTENT PROVIDED IN STARKPHOTO'S WEBSITE ARE FOR YOUR INFORMATION
ONLY AND ARE NOT, AND SHALL NOT BE CONSTRUED AS, PART OF THIS
AGREEMENT.