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Terms and Conditions of Use - Photoshelter.com
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THIS SITE. BY USING THIS SITE, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU ARE PROHIBITED FROM USING THE SITE OR ANY OF THE SERVICES.
The purpose of this website, PhotoShelter.com (the "Site," "we," or "us"), owned and operated by PhotoShelter, Inc. ("PhotoShelter"), is to provide photographers ("Content Providers") with a platform to market digital copies of their photographs or other content ("Content") to other persons or entities ("Licensees," and, collectively with Content Providers and all other users of the Site, "Users") desiring to acquire rights in such Content. In addition, the Site may offer certain resources and services to Users in connection with such purpose (the "Services"). Your use of the Site and the Services is governed by these Terms and Conditions of Use. You may use the Site and the Services only as expressly permitted herein and for no other purpose.
If you are a Licensee, your use of the Site is subject to the terms and conditions set forth in this Section.
PhotoShelter prohibits the use of User contact information obtained from the Site to complete transactions outside of the Site. In the event that you wish to acquire rights to an image or other material displayed on the Site as available for licensing ("Offered Content"), you will have to register with the Site as a Licensee by providing certain valid and true contact and personal information and, prior to completing any transaction, valid credit card information. If you are a Licensee, you hereby agree and acknowledge as follows: (i) any transaction you engage in with respect to any Offered Content is solely between you and the Content Provider posting such Offered Content, and (ii) PHOTOSHELTER DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY CONTENT, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OWNERSHIP OR NON-INFRINGEMENT. You hereby agree to indemnify and hold harmless PhotoShelter and its affiliates and each of their respective employees, contractors, officers, directors, suppliers, vendors, partners, Users, customers and agents (collectively, "Indemnitees") from and against any allegation, claim, demand, suit, action or other proceeding (collectively, "Claims") and any corresponding liability, cost, settlement amount, expense (including attorney's fees) or other loss (collectively, "Losses") incurred by any of the Indemnitees with respect to any claim that your use of any Offered Content violates, infringes, misappropriates or otherwise interferes with any patent, copyright, trademark, trade secret, right of privacy or publicity, or any other intellectual property, proprietary or any other right of any person or entity (collectively, "Third Party Rights"). You represent and warrant that you will restrict your use of the Offered Content according to the terms and conditions contained in the applicable License Right Agreement posted on the Site at the time of your transaction for the category of rights licensed by you.
If you license rights to any Offered Content from the Site, you hereby authorize PhotoShelter to reveal to the Content Provider and/or a Billing Service (as defined below) such portion of your registration information (including your credit card information) as is necessary or desirable to consummate such transaction. You hereby agree to indemnify and hold harmless the Indemnitees from and against any Claim or Loss incurred by any of them in connection with revealing such information; provided however you will have no obligation to the extent such Claim or Loss is a direct result of PhotoShelter's gross negligence or intentional misconduct.
PhotoShelter will use reasonable efforts to ensure that the Site and Service is available 24 hours a day 7 days a week. However, from time to time PhotoShelter may be required to purge the Site of images to maintain the operation of the Site, during which time we may remove content from the Site in our sole discretion. Additionally, there will be occasions when the Site and/or Services will be interrupted for maintenance, upgrades and/or emergency repairs or due to failure of telecommunications links and equipment. Every reasonable step will be taken by PhotoShelter to minimize such disruption where it is within PhotoShelter's reasonable control. YOU AGREE THAT PHOTOSHELTER WILL NOT BE LIABLE IN ANY EVENT TO YOU OR ANY OTHER PARTY FOR ANY SUSPENSION, MODIFICATION, DISCONTINUANCE OR LACK OF AVAILABILITY OF THE SITE OR SERVICE(S). PhotoShelter makes no claim that the Site may be lawfully viewed or that content may be downloaded outside of the United States. Access to the content may not be legal by certain persons or in certain countries. If you access the Site from outside the United States, you do so at your own risk and you are responsible for compliance with the laws of your jurisdiction.
As a condition to being a User, Licensee and/or Content Provider, you represent, warrant and agree as follows:
Under no circumstances will you use the Site or Services to: (i) violate any federal, state, local or international law or to otherwise engage in any unlawful purposes, (ii) upload, post, order for print, email or otherwise transmit or communicate any material that is obscene, offensive, blasphemous, pornographic, unlawful, threatening, menacing, abusive, harmful, an invasion of privacy or publicity rights, defamatory, libelous, vulgar, illegal or otherwise objectionable, (iii) upload, post or otherwise transmit or communicate any material that you do not have a right to transmit or communicate or which violates, infringes, misappropriates or otherwise interferes with any Third Party Rights, (iv) harm minors in any way, including, but not limited to, content that violates child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct, (v) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Site, (vi) upload, post or otherwise transmit any material which is likely to cause harm to the Site, PhotoShelter or anyone else's computer systems, including but not limited to that which contains any Malware, (vii) send unsolicited e-mails, bulk mail, spam or other materials to users of the Site or any other individual, (viii) harass, threaten, stalk or abuse any person or party, including other Users of the Site; (ix) invade the privacy of others, or collect and use an individual's personal and private information or gain or attempt to gain unauthorized access to other computer systems via the Site, (x) create a false identity or to impersonate another person, or (xi) post any false, inaccurate or incomplete material or delete or revise any material that was not posted by you. You agree to indemnify and hold harmless the Indemnitees from any Claim or Loss (including attorney's fees) in connection with any violation by you of any of (i) â€“ (xi) above.
These conditions are only the minimum level of conduct that is expected at the Site. You are requested to use common sense and be considerate towards other Users. The Site reserves the right to, at its discretion, suspend or terminate your right to use the Site or the Services, if you violate the aforementioned rules of conduct or engage in other offensive conduct. No refund of fees or other amounts will be made if you violate or breach any of the Terms and Conditions.
Please review the forms of License Right Agreement. In the event that you participate in any transaction involving any Offered Content, such transaction will be subject to the terms and conditions contained in the applicable License Right Agreement for the category of rights licensed thereby, as posted on the Site at the time of such transaction.
The Site acts as a passive conduit for the archival, display and sale of digital images, information and other data and PhotoShelter has no obligation to screen or monitor such images, information or data for any purpose. However, if PhotoShelter becomes aware of or has reason to believe that you are violating the terms and conditions contained herein or elsewhere on the Site (including without limitation the requirements set forth under the section entitled "User Obligations" above), PhotoShelter may take any one or more of the following actions at its sole discretion:
- remove and/or delete any Content that PhotoShelter believes is in violation or non-conformity with the terms hereof or applicable law,
- suspend and/or terminate your status as a User, Licensee and/or Content Provider with the Site and/or Services, and/or
- pursue any other remedy or relief available to PhotoShelter under equity or law.
In the event that PhotoShelter elects to take any of the actions set forth above, you will have no right to receive any refund of fees or payments and PhotoShelter will have no obligation to return such image(s) or provide you with a copy of your Posted Content as provide above. YOU HEREBY CONSENT TO SUCH REMOVAL AND/OR DELETION AND WAIVE ANY CLAIM AGAINST PHOTOSHELTER FOR SUCH REMOVAL AND/OR DELETION.
If you believe that content residing on the Site infringes a copyright, please see our Copyright Policy.
PASSWORDS AND SECURITY
Upon becoming a Content Provider or a Licensee, you will create a password. You are solely responsible for any use of or action taken under your password on the Site. Your password may be used only to electronically authorize transactions, review information regarding potential and completed transactions and otherwise access and use the Site in accordance with these Terms and Conditions. You are solely responsible for maintaining the confidentiality and security of your password, and you hereby agree not to disclose your password to any third party. You accept full responsibility for all transactions and other activity placed or conducted through your account and agree to and hereby release PhotoShelter from any and all liability concerning such transactions or activity. You agree to notify PhotoShelter immediately of any actual or suspected loss, theft or unauthorized use of your account or password. PhotoShelter has no obligation to inquire as to the authority or propriety of any use of or action taken under your password and will not be responsible for any loss to you arising from any such use or action or from your failure to comply with the above. PhotoShelter expressly disclaims any and all liability for the accessing of any data or communications by unauthorized persons or entities.
All material and content contained on the Site (other than Posted Content) and including, but not limited to graphics, images, logos, articles, videos, animations, audio and digital clips, photographs, illustrations, icons, the compilation of all content on the Site, are the property of PhotoShelter and/or third parties and is protected by United States and international laws. All trademarks, service marks, and trade names are proprietary to PhotoShelter and/or third parties. No material from the Site other than your Posted Content or Posted Content licensed by you through the Site may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way. In the event you download software from the Site, the software, including any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the "Software") are licensed to you by PhotoShelter or third party licensors for your personal, noncommercial use only. In no event shall title of the Software be transferred to you. We (or third party licensors) retain full and complete title to the Software and all intellectual property rights therein. You may not reproduce, display, perform, modify, redistribute, sell, de-compile, reverse engineer, disassemble, or otherwise reduce the Software to a human-readable form.
PhotoShelter reserves the right to reject, suspend or terminate your status as a User, Licensee and/or Content Provider and/or prohibit your access to and use of all or any portion of the Site at any time and for any reason, in its sole discretion. In the event of such termination, PhotoShelter's sole obligation to you will be to refund the pro rata unused portion of your subscription fee and Bandwidth Subscription base fee, if any, less any accrued and unpaid fees incurred on your account. Termination of your access to and use of the Site shall not relieve you of any obligations arising or accruing prior to such termination or limit any liability that you otherwise may have to PhotoShelter, including without limitation all indemnification obligations contained herein.
PhotoShelter may modify these Terms and Conditions or any of the policies or guidelines governing the Site, at any time and in its sole discretion, by posting the modified Terms and Conditions or other policies and guidelines on the Site. The modifications shall be effective upon such posting (unless some other date is specified in the posting, in which case that date shall be deemed the effective date for the modifications). You agree to review these Terms and Conditions periodically so that you are aware of any modifications. Your use of the Site indicates your full acceptance of the Terms and Conditions in their then-current form each time you use the Site. You agree that the notice provisions provided in these Terms and Conditions are reasonable. You may not modify these Terms and Conditions or any of the policies or guidelines governing the Site without PhotoShelter's express prior written consent. From time to time, PhotoShelter may offer certain Services through the Site (directly or in conjunction with third parties) that require you to agree to additional terms and conditions ("Supplemental Terms and Conditions"). In such an event, PhotoShelter may either: (i) present such Supplemental Terms and Conditions to you for approval through a "click wrap" approval or (ii) post such Supplemental Terms and Conditions on the Site. In either case, the Supplemental Terms and Conditions will be deemed to be an integral part of these Terms and Conditions and your use of such Services will be deemed as acceptance and agreement to the Supplemental Terms and Conditions.
THIRD PARTY WEBSITES
Users of the Site may gain access from the Site to third party sites on the Internet through hypertext or other computer links on the Site. Third party sites are not within the supervision or control of PhotoShelter. Unless explicitly otherwise provided, PhotoShelter does not: (i) make any representation or warranty whatsoever about any third party site that is linked to the Site, or (ii) endorse the products or services offered on such site. You agree that PhotoShelter: (a) shall not have any responsibility and liability for content on third party websites and (b) does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party. You hereby irrevocably waive any claim against PhotoShelter with respect to such sites and third party content.
DISCLAIMER OF WARRANTIES
USE OF THE SITE IS AT YOUR OWN RISK. THIS SITE, SERVICES AND CONTENT ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, PHOTOSHELTER HEREBY DISCLAIMS ALL WARRANTIES, ORAL OR WRITTEN, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SITE (INCLUDING ALL CONTENT THEREON) AND THE SERVICES AND YOUR USE THEREOF, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, (I) PHOTOSHELTER DOES NOT REPRESENT OR WARRANT THAT THE SITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, BE FREE OF MALWARE, BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS CAN OR WILL BE FIXED, AND (II) PHOTOSHELTER IS NOT RESPONSIBLE FOR, AND MAKES NO WARRANTIES WITH RESPECT TO, ANY THIRD PARTY CONTENT (INCLUDING, WITHOUT LIMITATION, THAT OF ANY CONTENT PROVIDER) CONTAINED ON THE SITE OR THAT MAY BE LINKED TO THE WEBSITE.
SOME JURISDICTIONS DO NO ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES. IN SUCH JURISDICTIONS, THE AFOREMENTIONED DISCLAIMERS, RELATED TO IMPLIED WARRANTIES MAY NOT APPLY TO YOU.
LIMITATION ON LIABILITY
TO THE FULLEST EXTENT ALLOWED BY LAW, NEITHER PHOTOSHELTER NOR ANY OF ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES OR MEMBERS BE LIABLE FOR ANY CLAIMS, LOSSES OR DAMAGES WHATSOEVER THAT RESULT FROM USE OF (OR INABILITY TO USE) THE SITE OR SERVICES, INCLUDING BUT NOT LIMITED TO: (I) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES; (II) DAMAGES FOR LOSS OF USE, PROFITS, DATA, IMAGES, POSTED CONTENT OR OTHER INTANGIBLES; (III) DAMAGES FOR UNAUTHORIZED USE, NON-PERFORMANCE OF SITE, ERRORS OR OMISSIONS; (IV) DAMAGES RELATED TO DOWNLOADING INFORMATION, POSTING INFORMATION; OR (V) DAMAGES RESULTING FROM MALWARE. SOME JURISDICTIONS DO NO ALLOW THE FOREGOING LIMITATIONS OF LIABILITY, SO THE FOREGOING MAY NOT APPLY TO YOU. PHOTOSHELTER'S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL BE LIMITED TO THE GREATER OF THREE HUNDRED UNITED STATES DOLLARS OR THE UNUSED PORTION OF YOUR SUBSCRIPTION FEE.
You agree to indemnify and hold harmless the Indemnitees from and against any and all Claims and Losses arising from or relating to (i) your use of the Site and/or any material or Content you submit, download, post or transmit through the Site; (ii) your breach of these Terms and Conditions or any representation, warranty or covenant made by you herein; (iii) any transaction you participate in relating to any Posted Content, (iv) your violation of any applicable law, statute, ordinance, regulation or any Third Party Rights or (v) any claim of defamation, libel or slander relating to any Content posted by you. This obligation survives indefinitely the termination and/or expiration of these Terms and Conditions and/or your status as a User, Licensee and/or Content Provider.
Any disputes arising out of or relating to these Terms and Conditions or use of the Site shall be resolved in accordance with the laws of the State of New York, without regard to its conflict of law rules. You hereby consent to the exclusive jurisdiction of the Southern District of New York or any New York State court located in the County of New York, New York in all disputes arising from or relating to these Terms and Conditions or your access to or use of the Site and/or Services.
These Terms and Conditions will be binding on and will inure to the benefit of the legal representatives, successors and assigns of both parties. PhotoShelter may assign these Terms and Conditions in whole or in part at any time without your consent. You may not assign these Terms and Conditions or delegate any of your obligations hereunder.
NOTICE TO COMPANY
Any notice to the Site that is required or permitted by these Terms and Conditions shall be in writing and shall be deemed effective upon receipt, when sent by confirmed e-mail to email@example.com or when delivered in person by nationally recognized overnight courier or mailed by first class, registered or certified mail, postage prepaid, to, 33 Union Square West; 2nd Floor; New York, NY 10003.
No failure of PhotoShelter to enforce any of its rights under these Terms and Conditions will act as a waiver of such rights.
If any portion of any provision of these Terms and Conditions is found invalid or unenforceable, that provision shall be enforced to the maximum extent possible and the remaining provisions of these Terms and Conditions shall remain in full force and effect. Headings used in these Terms and Conditions are for convenience only and have no legal or contractual significance.
PhotoShelter has adopted the following policy toward copyright infringement with respect to the Site in accordance with the Digital Millennium Copyright Act, a copy of which is located at http://lcweb.loc.gov/copyright/legislation/dmca.pdf. The address of PhotoShelter's Designated Agent to Receive Notification of Claimed Infringement (the Designated Agent) is listed at the end of this Copyright Policy.
PhotoShelter will (1) disable access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any Subscriber or Contributor to the Site; and (2) terminate the account and access to the PhotoShelter service of any repeat offender. This policy applies to all aspects of all services provided by PhotoShelter via the Site.
Reporting Copyright Infringements.
If you believe that content residing or accessible on the Site infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent:
1. Identification of the work or material being infringed.
2. Identification of the material that is claimed to be infringing, including its location, with sufficient detail so that PhotoShelter is capable of finding and verifying its existence.
3.Contact information about the notifying party (the Notifying Party), including name, address, telephone number and e-mail address.
4.A statement that the Notifying Party has a good faith belief that the material is not authorized by the copyright owner, its agent or law.
5.A statement made under penalty of perjury that the information provided in the notice is accurate and that the Notifying Party is authorized to make the complaint on behalf of the copyright owner.
6.The Notifying Party's physical or electronic signature.
Responding to Complaints.
After notification of an alleged infringement is received by the Designated Agent:
1.PhotoShelter will remove or disable access to the allegedly infringing material.
2.PhotoShelter will then immediately notify the member responsible for the allegedly infringing material (the Offending Member) that it has removed or disabled access to the material.
3.If the Offending Member is a repeat offender, PhotoShelter will immediately terminate such member's account and access to the Service in addition to removing the infringing material.