EXCLUSIVITY CONTRACT
This Agreement governs the terms by which photographers, videographers or other artists provide stock photographic, video and other media content to members of the iStockphoto.com community, on an exclusive basis through the web site located at
www.istockphoto.com (the "Site"), and to other prospective purchasers through other distribution venues. [For the non-exclusive supply agreement, go to this link]. This Artist's Supply Agreement is in addition to the Terms of Use applicable to the Site and to the Membership Agreement that all persons providing content to or downloading content from the Site have previously entered into. In the event of any inconsistency between this Agreement, the Membership Agreement and the Terms of Use, the terms of this Agreement shall govern.
Background of Agreement
If you have access to this Agreement, you qualify for the exclusivity program of iStock International Inc. ("iStockphoto") whereby in return for increased compensation, artists agree to provide exclusivity to iStockphoto for elements of the visual content produced by them. Because iStockphoto offers different categories of content, this agreement may differentiate among categories of content that you produce, such as still photography, illustrations, flash files, and related material produced by Supplier ("Still and Flash Content") or video files, animations, and related material produced by Supplier ("Motion Content"). Exclusivity with respect to either Still and Flash Content or Motion Content depends on your qualification under each such category, and to the selection of the chosen categories under the "Exclusivity" portion of the control panel in your account profile on the Site. If you do not wish to provide such exclusivity, but wish to provide royalty-free stock content that is either Still and Flash Content or Motion Content on a non-exclusive basis, the correct agreement can be found here.
This is a fairly lengthy document, and it contains many important provisions that affect your rights and obligations. By ticking the correct box at the end of this Agreement and typing "I agree", this becomes a binding legal agreement between any member intending to upload data or materials onto the Site on an exclusive basis for the relevant category of content (in this agreement referred to as "you" or the "Supplier") and iStockphoto, operator of the Site. We encourage you to print a copy of the Agreement for your records.
The Supplier wishes to appoint iStockphoto as its exclusive agent to license and distribute Exclusive Content (as defined below) produced by the Supplier on the terms and conditions set forth in this Agreement and iStockphoto's form of content license agreement, as such agreement may be amended from time to time or modified for certain clients consistent with the rights granted herein (the "Content License Agreement"). For the purposes of this Agreement, "Content License Agreement" shall be deemed to include all of the Extended License options and provisions to which Supplier has opted-in using the administrative tools relating to his or her account profile on the Site.
Upon accepting the terms of this Agreement, you may make Exclusive Content available to iStockphoto by following the "Upload" procedures identified on the Site. Each upload of Exclusive Content will be governed by the terms and conditions of this Agreement, which will be confirmed by you upon each upload.
This Agreement remains in full force and effect until terminated in accordance with its terms. If at any time the terms and conditions of this Agreement are no longer acceptable to the Supplier, you must follow the termination procedures set forth below under "Term and Termination".
Provision of Exclusive Content
In this Agreement, "Exclusive Content" means, as applicable to Supplier, either or both of: (i) Still and Flash Content, and (ii) Motion Content; together in any case with (iii) descriptive and other information, documents (such as model or property releases) or software relating to such Still and Flash Content and Motion Content, as the case may be (collectively, "Content") or otherwise required to enable iStockphoto to realize the commercial potential of the rights granted in the Content ("Descriptive Information"); but shall not include (1) Content that is produced as "work for hire" within the meaning of United States federal copyright legislation or is otherwise the result of a specific commission by a bona fide client of the Supplier evidenced by written agreement where the Content deliverable from such commission is for the personal use of the client and not for resale or license to any other person or entity, except to the extent Supplier retains in such Content any royalty free rights of the type outlined in the Content License Agreement; (2) Content that is produced for "Editorial" purposes except to the extent the Supplier retains in such Content any royalty free rights of the type outlined in the Content License Agreement, where "Editorial" means visual reporting to illustrate general interest and specialty stories for information, documentary or photojournalism (but not advertorial) purposes only; (3) Content that is "Rights Managed", which is defined as Content produced by the Supplier and licensed for a fee that is based on one or more limited uses and for which usage history is tracked; (4) Content that is of a category not currently offered for sale by iStockphoto (such as stand alone audio files); or (5) other Content specifically designated by the Supplier and agreed by iStockphoto as being non-exclusive Content.
Notwithstanding the definition of Exclusive Content and the exclusive license granted in this Agreement, nothing shall restrict the Supplier from (i) establishing or maintaining a personal portfolio web-site on which Exclusive Content is posted for the purposes of art display but not the sale or licensing or giving away of rights to the digital Content; or (ii) using Exclusive Content in connection with the sale by Supplier of prints, t-shirts and other merchandise where the sale or licensing or giving away of rights to the digital images or other Content beyond such merchandising use is not involved.
The Supplier will provide Exclusive Content to iStockphoto using the Upload procedures and policies of the Site or such other procedures and policies as the parties may mutually agree. iStockphoto, in its sole discretion, may determine which of such Exclusive Content is suitable for posting on the Site or other means of distribution, and only such Exclusive Content as it deems suitable will be considered "Accepted Exclusive Content" for the purposes of applicable provisions of this Agreement.
In addition to the terms of this Agreement, the parties acknowledge that iStockphoto's exclusivity program and the provision of all Exclusive Content are subject to the policies and procedures outlined in the relevant portions of the Site, the terms of which are incorporated by reference into this Agreement. Any breach of the rules relating to the exclusivity program and acceptable Exclusive Content outlined in the Site will be deemed to be a breach of this Agreement.
Grant of Authority
The Supplier hereby appoints iStockphoto as Supplier's exclusive agent and sole distributor to sell or license Exclusive Content to third parties within the jurisdictions of iStockphoto's business, and to collect and remit funds in connection with those endeavours on the terms set forth in this Agreement. For all Exclusive Content, Supplier grants iStockphoto:
The exclusive right and license to use, reproduce, distribute, redistribute, publish, republish, upload, post, transmit, crop, package, repackage, produce and sell prints or similar image products, or publicly perform or display the Exclusive Content to prospective purchasers and licensees: (i) through the Site; (ii) through other venues owned or operated by iStockphoto or its affiliates from time to time, and(iii) through third party distributors and alliance or channel partners of iStockphoto, and
The right to grant perpetual, world-wide, non-exclusive and non-transferable licenses or sub-licenses to end-users in accordance with the terms of the Content License Agreement (i current copy of which can be found here that the Supplier hereby acknowledges having reviewed and approved) and, where such purchase or license is through one of the venues described in (ii) or (iii) above, to other purchasers and licensees on terms and conditions substantially similar to such Content License Agreement with such reasonable modifications as iStockphoto may agree.
In addition to the foregoing grant, so long as the Supplier has not opted out of the "Promotional Uses" category under the Control Panel of his or her account profile on the Site, iStockphoto may post, reproduce, modify, display, make derivative works or otherwise use any Exclusive Content for its own business purposes relating to the promotion of the Site and its distribution programs, and expand the market for the sale or licensing of Exclusive Content (including, without limitation, the use of the Exclusive Content and the Supplier's registered and unregistered trademarks for marketing, sales and promotional efforts whether on the Site or through third parties). The Supplier agrees that iStockphoto shall have exclusive rights to design marketing literature for the Exclusive Content, at its own expense, and the Supplier agrees to cooperate in that regard. No compensation shall be due to the Supplier for use of Exclusive Content for such business purposes.
The Parties agree that all rights, including title and copyright, in and to the Exclusive Content will be retained by the Supplier, and no title or copyright is transferred or granted in any way to iStockphoto or any third party except as provided in this Agreement and license agreements which iStockphoto is authorized to enter into on the Supplier's behalf.
Intellectual Property Matters
The Supplier acknowledges that iStockphoto prohibits any Exclusive Content, Descriptive Information or any other material that infringes on any patent, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded to the Site.
By uploading Exclusive Content, you are warranting that you own all proprietary rights, including copyright, in and to the Exclusive Content with full power to grant the rights contemplated to be provided in the Content License Agreement in such Exclusive Content, and that you are not making any of the Exclusive Content available to or through any other distributor, website (other than iStockpro.com) or other marketing, distribution, sale or licensing venue of any kind not specifically permitted herein. In addition, to the extent that the Exclusive Content contains images of people or persons, you represent and warrant that you have obtained as part of the Descriptive Information a valid and binding model release from all required parties in substantially the same form as
http://www.istockphoto.com/docs/modelrelease.pdf that will permit the uses for such Exclusive Content contemplated in this Agreement and the Content License Agreement. You also warrant that where required by applicable law, you have also obtained a valid and binding release in substantially the same form as [property release] relating to identifiable property contained in the Exclusive Content that might sensibly lead to the identity of or be required by the owner of such property to permit the uses under the Content License Agreement.
The Supplier agrees that neither iStockphoto nor any of its directors, officers, employees, partners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Exclusive Content or Descriptive Information, or any error, omission or other matter relating to a model or property release respecting Exclusive Content or Descriptive Information.
Compensation
iStockphoto agrees to pay a portion of the fees collected in respect of Accepted Exclusive Content that is downloaded or otherwise purchased by end-users according to the rate schedule for Still and Flash Content and Motion Content, as the case may be, set forth on Appendix "A" to this Agreement (the "Rate Schedule") and the license or sale of Exclusive Content recorded by iStockphoto. The parties acknowledge that the Rate Schedule is subject to change in the sole discretion of iStockphoto in the ordinary course of its business without notice by posting such changes on the Site. If at any time the Rate Schedule is not acceptable to the Supplier, you may refrain from providing additional Exclusive Content or terminate this Agreement in accordance with its terms.
In response to a written request, iStockphoto will endeavor to make payment of fees in respect of purchased downloads of Accepted Exclusive Content on a monthly basis on or about the 15th day of the month following the purchase of Accepted Exclusive Content provided such fees aggregate a minimum of US$100, failing which fees owing will be retained until they exceed such minimum. In all cases, payment of fees to the Supplier will be net of: (i) applicable taxes or other withholdings required by applicable law; (ii) bad debts or other uncollectible sums; (iii) where purchases or licenses are by other than the credit system, fees payable to financial institutions for the processing of any credit card, debit card, e-cheque or alternative payment method; (iv) returns and refunds; (v) legal and other reasonable fees incurred in enforcing this Agreement or the agreements contemplated herein; and (vi) any amounts owing by the Supplier to iStockphoto under this Agreement or otherwise.
Without limiting the generality of the foregoing, iStockphoto is entitled to set-off against any amount owing to Supplier, all amounts to which iStockphoto is or may be entitled under this Agreement or otherwise at law, including withholding amounts as security for any pending or threatened claim relating to any matter which is the subject of a representation, warranty or indemnity of Supplier under this Agreement.
The parties further agree that iStockphoto shall not be required to pay royalties or fees to the Supplier if iStockphoto is restrained or otherwise prevented from using rights granted under this Agreement relating to Exclusive Content because those rights are found to be an infringement or contravention of the intellectual or other property rights of a third party, or if iStockphoto discovers or determines in its reasonable discretion that the Exclusive Content provided by the Supplier appears for sale or license or give-away elsewhere in contravention of this Agreement
In the event iStockphoto facilitates a sale or license of Exclusive Content that requires an amendment to the standard Content License Agreement to facilitate such transaction, iStockphoto shall be entitled to deduct a reasonable administration fee relating to such sale or license, in addition to its share of the revenue relating to such sale.
Passwords
You acknowledge and agree that you will be responsible for each and every access or use of the Upload portions of the Site that occurs in conjunction with your Member Name and such passwords, and that iStockphoto is authorized to accept your Member Name and password as conclusive evidence that you wish to upload Exclusive Content pursuant to this Agreement. iStockphoto shall have no liability or responsibility to monitor the provision of Exclusive Content under your member name and password.
Managing Exclusive Content
iStockphoto has policies and processes which must be adhered to prior to Content being posted on the Site or otherwise being offered for sale or license, and iStockphoto agrees to give priority to the posting of Exclusive Content within the general constraints of its business. Notwithstanding that some qualitative standards are required to be met, iStockphoto does not and cannot review all Exclusive Content or Descriptive Information uploaded to the Site and is not responsible for the content, quality, or consequences of your uploading such Exclusive Content or Descriptive Information. Notwithstanding the foregoing, iStockphoto reserves the right to delete, move, refuse to accept or edit any communication or Exclusive Content that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or is otherwise unacceptable in its discretion, and you hereby agree to forfeit any fees payable in respect of such Content to iStockphoto or as it may direct. iStockphoto shall have the right but not the obligation to correct any errors or omissions in any Exclusive Content or Descriptive Information, as it may determine in its sole discretion. You acknowledge that any screening of Exclusive Content or Descriptive Information performed by iStockphoto to determine Accepted Exclusive Content is done as a courtesy only.
You further agree that any Exclusive Content that is not accepted by iStockphoto and does not form Accepted Exclusive Content cannot be sold, licensed or otherwise made available to purchasers, licensees or other potential users without the prior written consent of iStockphoto. iStockphoto reserves the right to sell non-accepted Exclusive Content through another site or distribution venue determined by it, the compensation for which will be subject to a new rate schedule agreed between the parties.
NOTICE: You acknowledge that the Exclusive Content you provide pursuant to this Agreement that becomes Accepted Exclusive Content may be purchased or licensed by members with the intention that they will adhere to the terms of the Content License Agreement. Where iStockphoto becomes aware of the breach of a license agreement by a user of Exclusive Content, it agrees that it will take initial steps in accordance with its usual business practices for the exclusivity program to request that the offending party refrain from its prohibited use of such Exclusive Content. iStockphoto will use commercial efforts to further assist in the protection of your intellectual property rights, at your request and expense.
Notwithstanding the foregoing, given the exigencies of the stock photography business and the prevalence of royalty-free content, iStockphoto cannot take responsibility for the compliance by purchasers and licensees of the terms of such agreements. Accordingly, you acknowledge and agree to the possibility of Exclusive Content being used in a manner that is not contemplated in this Agreement or the Content License Agreement, and you agree that notwithstanding any rights you may have to pursue the licensees of such Exclusive Content at law, iStockphoto shall have no liability to you or any person claiming through you for any breach by a licensee of the terms of any agreement respecting Accepted Exclusive Content.
Confidential Information
The Supplier acknowledges that the Confidential Information (defined below) which it obtains through the entering into of this Agreement, the use of the Site and the provision of Exclusive Content constitutes valuable, confidential, proprietary information of iStockphoto and its licensors, and agrees that during the term of this Agreement and thereafter it shall not, without the express written consent of iStockphoto, use or disclose to any other person any such Confidential Information, except as specifically authorized under this Agreement.
For the purposes of this Agreement, "Confidential Information" means any and all data, information, documents, software or materials relating to the business and management of iStockphoto, its members, affiliates, licensors or licensees, that is designated as confidential or ought reasonably to be considered confidential, including but not limited to: their business model and operations, processes, products, designs, pricing, promotions, business plans, business opportunities, alliances, Content, graphics, documentation, finances, research, development, know-how, trade-secrets, training materials, personnel, identities or personal information of any kind pertaining to members, clients, methodologies, Site content belonging to others and other intellectual property.
Representations and Warranties
The Supplier hereby represents and warrants as follows:
The Supplier has the legal capacity and authority to enter into this Agreement, is the sole and exclusive owner of the Exclusive Content, has the right to grant all of the license rights contemplated to be provided under this Agreement, and has not granted any rights or licenses to any Exclusive Content or any other intellectual property or technology that would conflict with this Agreement;
no portion of the Content as delivered to iStockphoto from time to time, contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement, and all Content will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Site or the Content or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Content or the Site in any way;
the Content will include all necessary Descriptive Information to enable its effective marketing on the Site, which Descriptive Information will be complete and accurate in all material respects, and will not include false, misleading or inapplicable metadata intended to or which has the effect of keyword "doping" or improperly altering search results that would otherwise be applicable to such Content; and
the Content delivered to iStockphoto hereunder represents original creations and expressions of subject matter, and no Content or Descriptive Information infringes any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defames or casts into disrepute in any manner any third party.
Indemnity
You agree to indemnify, defend and hold iStockphoto and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Exclusive Content (collectively, the "iStockphoto Parties") harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any iStockphoto Party as a result of or in connection with: (i) any use or alleged use of the Site or provision of Content under your Member Name by any person, whether or not authorized by you; (ii) or resulting from any communication made or Content uploaded under your Member Name; (iii) any breach by you of this Agreement; or (iv) any claim threatened or asserted against any iStockphoto Party to the extent such claim is based upon a contention that any of the Exclusive Content used within the scope of this Agreement and the Content License Agreement infringes any copyrights, trade secrets, trademarks, right of privacy, right of publicity or other intellectual or other property rights of any third party.
iStockphoto reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with iStockphoto's defense of such claim.
The Supplier agrees that iStockphoto shall have the right to determine whether and to what extent to proceed against a licensee or other third party (an "Infringer") for any violation of the Content License Agreement or alleged infringement of other rights of the Supplier. The Supplier hereby releases iStockphoto from any and all claims the Supplier might have, either directly or indirectly, arising out of or in connection with a determination by iStockphoto to proceed or not to proceed against any Infringer in any instance. iStockphoto hereby agrees that any monetary recovery it receives as a result of any legal or enforcement action taken against any such Infringer, to the extent such monies are intended to compensate iStockphoto for lost licensing fees or statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery ( including, without limitation, reasonable counsel and experts' fees and disbursements on a solicitor and client basis) incurred by or on behalf of iStockphoto in connection with such action, be divided between the Supplier and iStockphoto pursuant to the provisions of the Compensation section above. In the event iStockphoto elects not to proceed against an Infringer, the Supplier shall have the right to proceed against such Infringer for such license violation or infringing action. The Supplier hereby agrees that any monetary recovery it receives as a result of any legal action taken against any such Infringer, to the extent such monies are intended to compensate the Supplier for lost licensing fees or include statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable counsel and experts' fees and disbursements on a solicitor and client basis), be divided between the Supplier and iStockphoto pursuant to the provisions of the Compensation section above.
Term and Termination
This Agreement is effective until terminated. You may terminate this Agreement with respect to Still and Flash Content or Motion Content, or both, at any time by giving thirty (30) days written notice specifying the category or categories of Exclusive Content to which termination applies to iStockphoto using [help@istockphoto.com] or such other means of written notice acceptable to iStockphoto which enables confirmation of your identity and your intention to terminate. iStockphoto may also terminate this Agreement with respect to Still and Flash Content or Motion Content, or both, for any reason by giving you thirty (30) days notice by e-mail at the last address contained in your membership information. If iStockphoto terminates your membership pursuant to the terms of the Membership Agreement, such termination shall be deemed to be notice of termination of this Agreement with respect to all Content, as well.
Either party may terminate this Agreement upon written notice effective immediately sent to the last address included on the Site, if the other party (i) liquidates all or substantially all of its assets, dissolves as a corporation other than through inadvertence, or otherwise ceases to do business in a material way, or (ii) makes an assignment for the benefit of creditors, or (iii) files a petition in bankruptcy, petitions or applies for a receiver or trustee for all or any substantial part of its property and such receiver or trustee is appointed, or commences, or has commenced against it, a proceeding under any bankruptcy, reorganization, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, any of which shall remain in force for a period of thirty (30) days or more, or (iv) is adjudicated insolvent or bankrupt, or (v) is in breach of this Agreement.
In addition, iStockphoto may deem an account to be terminated and may off-set any fees or credits contained in such account against its costs of administration if there has been: (i) in the reasonable opinion of iStockphoto, any material misrepresentation made as to the capacity, identity or copyright ownership of Content or the Supplier provided hereunder; or (ii) no log-in or other activity in the account for 24 months despite reasonable commercial efforts to contact Supplier based on the information provided through the Site as part of the account profile of such Supplier.
Effect of Termination
Upon the termination of this Agreement with respect to Still and Flash Content or Motion Content, or both, the grant of authority given to iStockphoto shall cease with respect to the relevant category of Content subject to the following conditions: (i) iStockphoto shall remove the applicable Accepted Exclusive Content from the Site within thirty (30) days of the termination of this Agreement; (ii) notwithstanding termination, iStockphoto shall have the right to continue licensing Accepted Exclusive Content until it is removed from the Site and for up to (1) year following termination where such Accepted Content has previously appeared in iStockphoto's promotional materials, CD programs or channel partner marketing programs; and (iii) regardless of the expiration or termination of this Agreement, iStockphoto will continue, in accordance with this Agreement, to pay compensation due to the Supplier at the non-exclusive royalty rate of 20% in respect of licenses granted to members during any transitional period, subject to any rights of set-off under this Agreement or at law.
Upon termination, iStockphoto will be entitled to retain all amounts owing to the Supplier for a period of thirty (30) days to determine any applicable rights of set-off, and shall be entitled to deduct from such amounts, a reasonable administrative fee for establishing, managing and terminating your account.
Notwithstanding any other provision in this Agreement, the termination or expiration of this Agreement with respect to one category of Content shall not alter or reduce the obligations of the Supplier and iStockphoto respecting any remaining category of Content, and in any event, shall not alter or affect the rights granted to licensees or sub-licensees by iStockphoto pursuant to this Agreement.
In the event Supplier terminates this Agreement with respect to Still and Flash Content or Motion Content, or both, and subsequently wishes to re-enter the exclusivity program and provide Exclusive Content, the Supplier may re-apply with respect to that category of Content ninety (90) days after the termination date of the original Artist's Supply Agreement (Exclusive) relating to such category of Content.
Termination of this Agreement shall operate without prejudice to the iStockphoto's rights, defenses and limitations of liability provided under this Agreement, the Membership Agreement or the Terms of Use, which rights, defenses and limitations of liability shall survive termination of this Agreement. In addition, the provisions of this Agreement relating to: Managing Exclusive Content, Confidential Information, Representations and Warranties, Indemnity, Disclaimer of Warranties and all limitations of liability, shall survive termination of this Agreement and continue in full force and effect.
DISCLAIMER OF WARRANTIES
THE SITE, INCLUDING ANY CONTENT CONTAINED THEREIN, ARE PROVIDED BY ISTOCKPHOTO "AS IS" WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. ISTOCKPHOTO DOES NOT REPRESENT OR WARRANT THAT THE SITE OR THE CONTENT WILL BE MADE AVAILABLE FOR SALE OR LICENSE OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE.
ISTOCKPHOTO DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE SITE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
LIMITATION OF LIABILITY
YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN.
IN NO EVENT SHALL ISTOCKPHOTO OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF ISTOCKPHOTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
IN ANY EVENT, ISTOCKPHOTO'S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE SITE OR THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED BY ISTOCKPHOTO FOR THE EXCLUSIVE CONTENT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED ONE THOUSAND ($1,000.00) UNITED STATES DOLLARS.
SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF ISTOCKPHOTO OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Applicable law
The Site is controlled, operated and administered by iStockphoto from within the Province of Alberta, Canada. The Site can be accessed from all provinces and territories of Canada, as well as from other countries around the world. As each of these jurisdictions has laws that may differ from those of the Province of Alberta, you acknowledge and agree that this Agreement will be governed under the laws of the Province of Alberta and the federal laws of Canada applicable therein (without reference to conflicts of laws principles). You hereby irrevocably submit to the exclusive jurisdiction of the Courts of the Province of Alberta, Canada with respect to the subject matter of this Agreement. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time you are first granted access to the membership portions of the Site. You agree to waive any right you may have to (i) trial by jury; and (ii) to commence or participate in any class action against iStockphoto related to the Site, this Agreement or any agreements contemplated hereby.
Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be submitted to arbitration in Calgary, Alberta, pursuant to the rules of the Arbitration Act (Alberta) in effect at the time arbitration is demanded.
If iStockphoto is obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, you agree to reimburse iStockphoto for its legal fees, costs and disbursements if iStockphoto is successful.
General
You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the terms of the Membership Agreement and Terms of Use and any other agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Agreement you agree to be bound by them.
iStockphoto's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
This Agreement is personal to you and is binding upon your heirs, executors and legal representatives, as the case may be, and is not assignable by you without iStockphoto's prior written consent. iStockphoto may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
This Agreement can be amended by the written agreement of the parties or by iStockphoto posting amendments on the Upload portion of the Site. Continued provision of Exclusive Content or failure to terminate this Agreement within thirty (30) days of posting of such amendment will be deemed to be acceptance of the amendment by the Supplier and it will be incorporated by reference into this Agreement.
The parties have requested that this Agreement and all related documents be drawn up in English. Les parties ont demand que cette convention ainsi que tous les documents qui s'y rattachent soient en anglais.
Contact
If you have concerns relating to this Agreement, please contact iStockphoto at
help@istockphoto.com or via phone at (403) 265-3062.
Acknowledgement
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF ISTOCKPHOTO AGREEING TO PROVIDE A MEANS FOR THE SALE OR LICENSE OF YOUR EXCLUSIVE CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND ISTOCKPHOTO, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND ISTOCKPHOTO RELATING TO THE SUBJECT OF THIS AGREEMENT.
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