STARKPHOTO ROYALTY-FREE 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 upon your (a) using STARKPHOTO'S
website; (b) receiving a STARKPHOTO image; (c) using a CD furnished
by STARKPHOTO; or (d) paying any fee to STARKPHOTO.
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 royalty-free 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) "Offline Digital Media" means in or as part
of computer, audiovisual, and multimedia use; software; multimedia
programs; and CD-ROM products.
(e) "Online and Broadcast Video Media" means World
Wide Web site display, online display and broadcast video, but does
not include a computer bulletin board.
(f) "Printed Materials" means advertisements; editorial
or promotional copy; brochures; reports; newsletters; packaging;
and items intended for resale or complimentary distribution that
incorporate an image in their design, such as books, clothing, calendars,
and CD packaging, provided these products are not intended to allow
the re-distribution or re-use of the image.
(g) "Royalty-Free Image" means any image that STARKPHOTO
identifies in writing as royalty-free.
(h) "You" means the client of STARKPHOTO, and includes
the client's agents, employees, heirs, and assigns.
3. License
for Use; No Ownership Rights; Image Releases.
(a) STARKPHOTO
will grant you a license to use a royalty-free image, as provided
in the Agreement, in the United States, on a non-exclusive
and non-transferable basis,
without rights protection, conditioned
upon: (i) your acceptance
of all of the terms and conditions of the Agreement; (ii) your obtaining
all necessary releases and permissions; and (iii) 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.
(b) STARKPHOTO
retains the full rights to each STARKPHOTO image, and therefore
you cannot establish your own rights over all or any part of such
an image except as specifically agreed upon by you and STARKPHOTO,
in writing.
(c) No model or other releases exist as to any
image content unless otherwise specified in writing by STARKPHOTO
or unless specified adjacent to the actual image.
If STARKPHOTO erroneously asserts the existence, scope,
or validity of a release, STARKPHOTO'S liability is limited to the
usage fee paid for the applicable image.
4. Unlicensed
Use; Liquidated Damages and Other Remedies. Without a license, an image is provided solely
for your review. If you
make, or knowingly or negligently permit any third party to make,
any unauthorized use of an image, including use of an image that
exceeds your license, you will be liable for $10,000.00 as liquidated
damages, plus reasonable legal fees and costs, if any.
These damages may be in addition to other remedies legally
available to STARKPHOTO and this paragraph shall not limit any other
rights or remedies of STARKPHOTO.
5. Permitted
Uses of Licensees. Provided that
your use of a royalty-free image is solely for work that is created
for you, for your employer, or for a direct client or customer,
who must be the end-user of your work, and upon grant of a license
to you by STARKPHOTO, you may do the following:
(a) Use the image solely in: printed materials; online and broadcast video
media; and offline digital media.
Only low-resolution versions of an image (no greater than
640 x 480 pixels - 72 dpi) may be displayed on any World Wide Web
site, online, or on offline digital media.
(b) Modify or alter the image as necessary for your
use, as allowed under the Agreement.
You may create derivative works from a royalty-free image
with the consent of STARKPHOTO.
However, all rights to any derivative work shall belong to
STARKPHOTO and you may use such derivative work only as permitted
by the Agreement. Under the Agreement, all copyrights with
respect to the 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.
(c) Back up, copy, or archive the image, but only
as necessary for internal use. Any copy or archive you make must
include the image's copyright information.
(d) In the normal course of workflow, convey to
a third party (such as a printer) temporary copies of the image
that are integral to your work product and without which the product
could not be completed.
(e) 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.
6. 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.
7. Prohibited
Uses. You may not:
(a) Use the image in any unlawful manner or in any way that could be considered defamatory,
libelous, pornographic, obscene, or immoral.
(b) Use an image
featuring a person in a manner that implies endorsement of, or the
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.
Any such use is conditioned upon your first obtaining
the necessary releases and including a statement in the layout that
indicates that the person is a model and is used for illustrative
purposes only.
(c) Display the image in any digital format or
for any digital use at a resolution greater than 640x480 pixels,
except in editorial or preliminary design work. Doing so will
be viewed as an attempt to distribute the image in violation of
this Agreement. This provision is intended to prevent the theft
of the image from you, even if that was not your intention.
(d) Copy or reproduce the image or CD, except as
specifically provided under this Agreement.
(e) Transfer the rights to the image or CD, except
as specifically provided under this Agreement. All other rights
are reserved by STARKPHOTO.
(f) Reverse engineer, decompile, or disassemble
any part of the image or CD, subject to applicable law.
(g) Remove any copyright or trademark from any place
where it appears on the image or its accompanying materials.
(h) Use the image or any part of it as part of
a trademark, service mark, or logo, or in any manner that infringes
any trade or service marks, rights of privacy or publicity, or other
rights of third parties.
(i) Re-sell, distribute, or otherwise transfer
the image or the rights to use the image, except as specifically
provided for under this Agreement.
An image may not be distributed or sold individually, but
must be incorporated into printed materials, online and broadcast
video, or offline digital media, as provided in the Agreement.
STARKPHOTO is in the business of licensing images to its
customers. It is the specific intent of this provision to prohibit
a purchaser or licensee of STARKPHOTO's images from using the image
to enter, either directly or indirectly, a similar or competing
business. It is also prohibited
to use the image in a product whereby the purchaser or licensee
of that product can then use the image for its own purposes.
8. Number
of Users. The license granted
by the Agreement is a ten-person, multi-license Agreement, You and nine other designated people are permitted
to the licensed image. This
is not a simultaneous use license.
You may not allow more then ten designated people, whether
employees or contractors, access to or use of the image, even if
only ten people are using the image at the same time.
You may not simultaneously use an image on a server or create
any other image library that permits access to more than ten designated
people.
9. Payment
Terms. Prices can be
found on STARKPHOTO's website or by calling STARKPHOTO. Claims for adjustment of
terms must be made to STARKPHOTO within three (3) business days
of the receipt of the invoice. No
rights are granted until the invoice is paid in full.
Payment may be by credit card or cashiers check only.
10. Duration
of License. The royalty-free
license established by the Agreement is effective until it is terminated
by the parties. The license also terminates if at any
time you fail to comply with the terms of the Agreement. If
this happens, you hereby agree to destroy all copies and archives
of the image, to cease using the image for any purpose, and to confirm
to STARKPHOTO in writing that you have complied with these requirements.
11. Limited
Warranty.
(a)
STARKPHOTO
represents that it has the right to enter into this Agreement and
has the right to grant this license under these terms.
(b)
STARKPHOTO
warrants that an image and/or CD will be free from defects in materials
and workmanship under normal use for a period of 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) Except as provided above, the image or
CD are provided "as is" without warranty of any kind,
either express or implied. This
includes, but is not limited to, the implied warranties of merchantability
and fitness for a particular purpose.
(d) 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 or an authorized personnel or
other computer dealer) assume the entire cost of all necessary servicing,
repair, or correction.
(e) 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.
12. Limitation of Remedies of Licensee;
Replacement or Refund. STARKPHOTO's
entire liability and your exclusive remedy, with respect to any
claims arising out of your use of an image or CD, or arising out of your
actions in downloading an image, shall be limited to the following:
(a) Downloaded Images. You may be permitted to download the image again
if STARKPHOTO determines that you have been unable to download the
image successfully. In
this case, STARKPHOTO will provide the image to you on CD, for an
additional $15.00, or will refund your money, at its discretion.
(b) CDs. You may receive a replacement CD by returning it, together with a
copy of your receipt, to STARKPHOTO. If STARKPHOTO is unable
to provide you with a replacement CD that is free from defects in
materials or workmanship, you may terminate the Agreement by returning
the CD and STARKPHOTO will refund your money.
(c) No Money Damages.
Under no circumstances whatsoever will STARKPHOTO be liable
to you or any other party for any damages (including any lost profits,
lost savings, or other incidental or consequential damages) arising
out of the use or inability to use the image.
This provision applies even if STARKPHOTO or a distributor
authorized by STARKPHOTO has been advised of the possibility of
such damages, or for any claim by any other party. Some states do
not allow the limitations or exclusion of liability for incidental
or consequential damages, so the above limitation or exclusion may
not apply to you.
13. 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.
14. 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.
15. General Provisions.
(a) 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.
(b) 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. STARKPHOTO requests that the phrase "Photoã Starkphoto.com"
appear adjacent to an image or on a credit page.
(d) 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.
(e) Foreign Countries. You agree that the image will not be shipped,
transferred or exported into any country or used in any manner prohibited
by the United States Export Administration Act or any other export
laws, restrictions, or regulations.
(f) Uniform Commercial Code. You agree that this Agreement is subject
to Article 2 of the Uniform Commercial Code and the parties agree
to be bound by same.
(g) 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.
(h) Enforcement and Enforceability. (i) 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.
(ii) 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.
(i) 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.
16. 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.