This Agreement governs the terms by which composers, musicians or other artists provide stock musical compositions, master recordings, sound recordings, digital files and other audio content to members of the iStock.com community, on an exclusive basis through the web site located at www.iStock.com (the “Site”) and to other prospective licensees through other distribution venues as provided for in this Agreement. [For the non exclusive Sound Artist Supply Agreement, click here.] This Agreement contains many important provisions that affect your rights and obligations. BY TICKING CONFIRMING YOUR ACCEPTANCE OF THIS AGREEMENT (THE “AGREEMENT”), YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. If you are a corporation or other entity or a minor you may be subject to further filing requirements. We encourage you to print a copy of the Agreement for your records. In this Agreement you will be referred to as either “you”, “your” or “Sound Artist”. It is your duty to regularly review the Site for any posted amendments.
If you are currently a member of a performing rights society or other similar organization anywhere in the world (for example: SOCAN, ASCAP, BMI, SESAC, PRS, Harry Fox Agency, CMRRA, GEMA, SACEM, SDRM, SODRAC, SGAE, AGEDI, AIE, AOSGE, DAMA or JASRAC) you are not eligible to submit Exclusive Content to iStock. Should you wish to become a member of any such organization during the term of this Agreement, you must first terminate this Agreement in accordance with Section 14(a).
Background of Agreement
This is a legal agreement between any member intending to upload Exclusive Content onto the Site and Getty Images (US), Inc. (in this agreement referred to as “iStock” or “us” or “we”). The Sound Artist wishes to appoint iStock as its exclusive distributor to license and distribute Exclusive Content (as defined below) created by the Sound Artist on the terms and conditions set forth in this Agreement. If you do not wish to provide exclusivity but do wish to provide royalty-free audio content on a non-exclusive basis, the correct agreement can be found here.
Upon accepting the terms of this Agreement, you may make Exclusive Content available to iStock by following the ‘Upload’ procedures and policies identified on the Site. Each upload of Exclusive Content will be governed by the terms and conditions of this Agreement.
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 Sound Artist, you must follow the termination procedures set forth below under “Term and Termination”.
Provision of Exclusive Content
In this Agreement, “Exclusive Content” means all musical compositions, lyrics, master recordings, non-musical audio recordings and other sound material created or produced by you together with other information and documents relating to such content or otherwise required to enable iStock to realize the commercial potential of the rights granted in the audio content; however, Exclusive Content shall not include: (i) content that is produced as a “work for hire” within the meaning of the United States federal copyright legislation or is otherwise the result of a specific commission by a bona fide client of the Sound Artist evidenced by written agreement where the content deliverable from such client is for the personal use of the client and not for resale or license to any other person or entity, except to the extent the Sound Artist retains in such content any rights consistent with the Audio Content License Agreement; (ii) content that is “rights managed”, which is defined as content produced by the Sound Artist and which license is based on one or more limited uses and for which usage history is tracked; and (iii) other content specifically agreed between you and iStock as being non-exclusive content.
Notwithstanding the definition of Exclusive Content and the exclusive license granted in this Agreement, nothing shall restrict the Sound Artist from establishing or maintaining a personal portfolio website containing Exclusive Content for the sole purpose of performance of the Exclusive Content but not the sale, licensing, downloading or giving away of rights to the Exclusive Content.
The Sound Artist will provide Exclusive Content to iStock using the Upload procedures and policies of the Site or such other procedures and policies as the parties may mutually agree. iStock, in its sole discretion, may determine which of such Exclusive Content is suitable for licensing from the Site or other means of direct or indirect 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. Although iStock may permit Content to be submitted pursuant to certain applications from time to time, your ability to submit further Content to the Site shall be subject to policies and procedures outlined in the Site and such applications.
In addition to the terms of this Agreement, the parties acknowledge that iStock’s exclusivity program and the provision of all Exclusive Content are subject to the policies and procedures outlined in the Site and applications, the terms of which are incorporated by reference into this Agreement. Any breach of the rules relating to exclusivity program and Exclusive Content outlined in the Site will be deemed to be a breach of this Agreement.
You represent and warrant that you shall not: (i) license your own Exclusive Content (except occasionally and then only for legitimate creative purposes); or (ii) predominately license the content of only a few contributors. You agree that you will not collude with another iStock member to have that member do either of (i) or (ii) above for your benefit. You acknowledge that genuine subscription customers typically license files from many contributors and you agree that your subscription licensing behavior will conform to this typical conduct. In addition to any other available remedies, if you breach this paragraph iStock may immediately terminate this Agreement and/or, if applicable, cancel your subscription package without any refund to you. You further agree to forfeit any royalties earned by you in connection with your misconduct.
Grant of Authority
The Sound Artist hereby appoints iStock as Sound Artist’s exclusive distributor to sell, license or sublicense Exclusive Content to third parties worldwide, and to collect and remit funds in connection with those endeavours on the terms set forth in this Agreement. For all Exclusive Content, the Sound Artist grants to iStock the exclusive worldwide right to copy, use, reproduce, distribute, redistribute, sublicense, publish, republish, upload, post, transmit, broadcast, crop, modify, alter, create derivative works of, package, repackage, produce and sell prints or similar image products, or publicly perform or display the Exclusive Content to prospective licensees in any and all media now in existence or that may in the future be introduced: (i) through the Site or via a portable interface that links back to the Site; (ii) through other venues owned or operated by iStock or its affiliates from time to time or (iii) through Distribution Partners (defined in Section 4(d)). iStock and its Distribution Partners will determine the terms and conditions of all licenses of Exclusive Content granted by them, but will not use or license Exclusive Content for uses that are defamatory, pornographic or otherwise illegal. For all Exclusive Content, the Sound Artist grants to iStock the following exclusive rights to be exercised in any manner and in any and all media (whether now known or, if permitted by applicable law, hereafter created):
Reproduction, Synchronization and Electrical Transcription. The right to use and authorize others to use the Exclusive Content for the purposes of mechanical reproduction and duplication, electrical transcription, synchronization with visual images, other music or sound, dramatic productions, and various commercial uses and to collect all fees and royalties becoming due from such uses, if any;
Public Performance. The right to publicly perform and authorize others to publicly perform the Exclusive Content for profit and to collect all fees and royalties becoming due from such performances, if any;
Media. The right to market, advertise, promote, distribute, rent, sell, license, broadcast, exhibit, manufacture and otherwise exploit products, film or television productions and other works embodying the Exclusive Content, including (A) theatrically, (B) on all forms of television including cable, cable transmission, free, pay, subscription, syndicated, video-on-demand, CATV and satellite, (C) on radio for broadcast over the air, satellite broadcast, or internet whether by streaming or otherwise, (D) on the internet and/or mobile devices via browser, device or download, and (E) on tangible media devices (like DVD), and the right to authorize other to do the same;
Distort, Edit and Modify. To the extent permitted by applicable law, the right to adapt, edit, modify, change, loop and use less than an entire Exclusive Content file and the right to authorize others to do the same (and, consequently, you accept all changes to the Exclusive Content in keeping with the usual practices of the applicable industry of use);
Distribution. The right to distribute and license Exclusive Content in any configuration (as a single song or sound, as part of an album or other bundle, in an on-demand stream, as part of a subscription service, etc.) direct from the Site, via a portable interface that links back to the Site or through other third party venues;
Preview Content. The right to create, edit and publicly perform, playback or otherwise make available to the public by streaming, clips comprising portions of the Exclusive Content (“Preview Content”), such Preview Content designed to promote the sale of permanent downloads of Exclusive Content or subscriptions to a service that includes Exclusive Content or to promote the Site;
Server and Ephemeral Copies. The right to reproduce and publicly perform or reproduce any necessary server and/or ephemeral copies of the Exclusive Content, including those required to create and maintain an audio fingerprint and the right to authorize other to do the same;
Ring Tones and Mobile Audio. The right to edit, modify, alter, enhance, reproduce, loop, distribute and publicly perform portions of the Exclusive Content as so-called “ring tones,” “master tones,” “ringback tones,” or similar audio segments for use in connection with wireless devices, and the right to authorize others to do the same; and
Likeness and Biographical Information. The right to use and publish, and permit others to use and publish, your iStock member name (or, if you consent, your proper name) in association with the Exclusive Content, in connection with exploitation of the Exclusive Content by us or by third parties selling and distributing music or other sound content on or through their sites or other distribution channels, including for advertising and promotional purposes.
In addition to the foregoing grant, iStock and its Distribution Partners may post, reproduce, modify, display, make derivative works or otherwise Accepted Exclusive Content for its own business purposes relating to the promotion of the Site and its distribution programs, and promote the licensing of Accepted Exclusive Content (including, without limitation, the use of the Accepted Exclusive Content and the Sound Artist’s registered and unregistered trademarks relating to Accepted Exclusive Content for marketing, sales and promotional efforts whether on the Site or through third parties). No compensation shall be due to the Sound Artist for use of Accepted Exclusive Content for such business purposes.
The Parties agree that all right, title, and interest including copyright, in and to the uploaded Exclusive Content will be retained by the Sound Artist, and no right, title or copyright is transferred or granted in any way to iStock, licensees, sublicensees or any other third party except as provided in this Agreement.
Exclusive Content may be included in one or more current or future content collections (“Collections”) made available for licensing or distribution by iStock or third party distributors (each a “Distribution Partner”). iStock will determine the Collection and may subsequently move and license Exclusive Content through a Collection. For all Exclusive Content that moves into another Collection, the Royalties (defined below) paid to you shall be as set out in the Rate Schedule (defined below).
iStock and its Distribution Partners may offer license models through an application program interface (API) or other utility that will make Exclusive Content available for use by clients on a high-volume basis. Accordingly, where appropriate, the amount due to you will be determined according to: (a) the ratio of the number of individual items of your Exclusive Content to the total number of individual items of content licensed together; or (b) in iStock’s sole discretion, the relative value of your individual items of Exclusive Content compared to all other content licensed together with it.
Intellectual Property Matters
The Sound Artist acknowledges that iStock prohibits any Exclusive Content or any other material that infringes on any rights, including without limitation, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded to the Site and Sound Artist expressly agrees that the upload of Exclusive Content complies with all applicable law and does not infringe any of said rights.
To the extent permitted by applicable law, you waive all moral rights including without limitation your right to integrity of the Exclusive Content and the right to be associated with the Exclusive Content by name. To the extent such waiver is void or unenforceable by applicable law, you agree not to enforce any such moral rights against iStock, its licensees and sublicensees of the Exclusive Content. To the extent such an agreement not to enforce your moral rights is void or unenforceable by applicable law, you: (i) grant a revocable right to iStock, its licensees and sublicensees to use Exclusive Content without being credited as the author; (ii) grant to iStock, its licensees and sublicensees the right to make adaptations of the Exclusive Content and to exploit the Exclusive Content as provided in Section 4 above, and, (iii) agree that the upload by you of the Exclusive Content to the Site constitutes the first publication of the Exclusive Content.
All rights which are not expressly granted to iStock in this Agreement by Sound Artist are specifically reserved to Sound Artist and Sound Artist agrees not to exercise those reserved rights in any manner inconsistent with the rights granted to iStock in this Agreement.
iStock is entitled to categorize Accepted Exclusive Content into the audio category it deems appropriate without any liability to you. Should you disagree with any such categorization, you may request that such Accepted Exclusive Content be removed from the Site.
iStock shall determine the price to be charged to licensees and sublicensees for the license of Exclusive Content. These prices are subject to change in the sole discretion of iStock and its Distribution Partners in the ordinary course of its business.
iStock agrees to pay you royalties (the “Royalties”) within 30 days after the end of each month in which the license or sale was made (except when sales reporting is delayed for transactions that do not occur on the iStock Site, whether made by a Distribution Partner or otherwise, in which case payments will be made in the month following the date such sale is reported) (a “Sales Month”), by electronic funds transfer (as may be supported by iStock from time to time), or such other method as may be agreed by the parties. No payment will be made unless a minimum of $100, after Royalty Deductions (defined below), is due to you in accordance with the rate schedule (the “Rate Schedule”). Royalties are paid on “License Fees” which are (a) the amount charged by iStock or a Distribution Partner to each of their Clients (or in the case of certain Distribution Partners, the amount charged by iStock to those Distribution Partners for royalty free licenses); or (b) the amount of revenue, including advertising revenue, that is allocated to the Accepted Content pursuant to Section 4(e). The parties acknowledge that the Rate Schedule may differ among various types of Audio Content, such as sounds, sample, loop and song or otherwise among the sites/ Distribution Partners through which through which the Accepted Audio Content is distributed. The parties acknowledge that the Rate Schedule is subject to change in the sole discretion of iStock upon providing you 30 days’ notice by e-mail at the last address contained in your membership information. If at any time the Rate Schedule is not acceptable to the Supplier, you may terminate this Agreement in accordance with its terms. Continued submission of Content or failure to terminate this Agreement will be deemed acceptance by you of changes to the Rate Schedule, and the amended Rate Schedule will be incorporated by reference into this Agreement.
In all cases, the following deductions are made from License Fees before Royalties are calculated: any (i) applicable VAT, duty, levy or impost of any nature required to be withheld, deducted or paid by iStock from any current or future sums due to you by any law, regulation, or treaty (excluding: (A) any taxes on the net profits of iStock or any Distribution Partner; and (B) any withholding taxes imposed on remittances to iStock; (ii) unauthorized use detection/enforcement fees and expenses; (iii) currency hedging fees and costs; and (iv) shipping charges, insurance charges, fees for materials, and service fees such as, for example, special formatting requests, printing/framing costs and technology delivery/access services, distribution or fulfillment fees, and advertising sales commissions, in all cases arising out of or resulting from any license of the same Accepted Content.
iStock may deduct the following amounts from the Royalties payable to you (together the “Royalty Deductions”): (i) cancellations of a license where the original sale has been reported to you including where the cancellation is due to a fraudulent transaction; (ii) overpayment of Royalties in a prior Royalty period; and (iii) amounts that may be deducted or withheld in accordance with the Section 10 Indemnity.
iStock will use its best efforts to: (i) provide real time reporting of licenses from the iStock site (except with respect to iStock subscriptions) to your member account; and (ii) in the month following the report of licenses by a Distribution Partner to iStock or any other licenses not made from the iStock site, provide monthly reporting of those licenses (including through the iStock subscription) to your member account.
Without limiting the generality of the foregoing, iStock is entitled to set-off against any amount owing to Sound Artist, all amounts to which iStock 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 Sound Artist under this Agreement.
Sound Artist hereby waives any and all fees and royalties, including without limitation, mechanical royalties, synchronization fees, transcription license fees, videogram fees and royalties, neighbouring rights royalties and public performance royalties to which Sound Artist may otherwise be entitled to at law, as the result of any use, including duplication, reproduction, public performance or synchronization of all or a part of the Exclusive Content by iStock or by any licensee or sublicensee in connection with the ‘Preview Content’ or the Exclusive Content. If such waiver is void or unenforceable by applicable law, you agree that the amounts paid to you under pursuant to Section 6(b) are inclusive of all such fees and royalties.
You will be solely responsible for and will pay (i) any sums due to artists, authors, co-authors, copyright owners and co-owners, musicians, performers, producers and any other record royalty participants from sales, licenses or other uses of the Exclusive Content, including without limitation, neighbouring rights and sales royalties; (ii) all sums payable to recording studios, engineers, rental companies and others in connection with the recording of any Exclusive Content; (iii) all sums payable in connection with the use of musical compositions derived from sales or other uses of the Exclusive Content (i.e. mechanical royalties), (iv) for any rights, consents, or royalties payable to third-parties in connection with the delivery, encoding, transcoding, encrypting, use and/or distribution of the Exclusive Content; (v) all payments that may be required under any collective bargaining agreements applicable to you or any third party in connection with the Exclusive Content, and (vi) any other monies payable with respect to other authorized uses of the Exclusive Content.
The parties further agree that iStock shall not be required to pay any royalties to the Sound Artist if iStock is restrained or otherwise prevented from using rights granted under this Agreement relating to any 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 iStock discovers or determines in its reasonable discretion that the Exclusive Content provided by the Supplier appears for sale or license or giveaway elsewhere in contravention of this Agreement
In the event iStock facilitates a sale or exclusive license of Exclusive Content, iStock 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 or license, which share shall be based on the royalty payable pursuant to the Rate Schedule at the time of the transaction.
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 iStock is authorized to accept your member name and password as conclusive evidence that you wish to upload Exclusive Content pursuant to this Agreement. iStock shall have no liability or responsibility to monitor the provision of Exclusive Content under your member name and password.
Managing Exclusive Content
iStock 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 iStock 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, iStock does not and cannot review all Exclusive Content uploaded to the Site and is not responsible for the content, quality, or consequences of your uploading such Exclusive Content. Notwithstanding the foregoing, iStock 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, the applicable law, or any of iStock’s policies or is otherwise unacceptable in its discretion, and you hereby agree to forfeit any fees payable in respect of such Exclusive Content to iStock or as it may direct. iStock shall have the right but not the obligation to correct any errors or omissions in any Exclusive Content, as it may determine in its sole discretion. You acknowledge that any screening of Exclusive Content performed by iStock to determine Accepted Exclusive Content is done as a courtesy only. iStock reserves the right to assign an International Standard Recording Code to Exclusive Content that is uploaded without such code.
iStock shall make good faith efforts to organize the Exclusive Content on the Site in a rational format however, iStock makes no guarantees to Sound Artist as to the placement or location of any Exclusive Content in search results or otherwise. All features, specifications, products and prices of products and services described or depicted on the Site are subject to change at any time without notice.
You further agree that any Exclusive Content that is not accepted by iStock and does not form Accepted Exclusive Content cannot be sold, licensed or otherwise made available to purchasers, licensees, sublicensees or other potential users without the prior written consent of iStock. iStock 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 the Rate Schedule.
NOTICE: You acknowledge that the Exclusive Content you provide pursuant to this Agreement may be licensed by licensees or sublicensees with the intention that such licensees or sublicencees will adhere to the terms of the applicable license agreement. Where we become aware of a breach of a license agreement or an unauthorized use by a user of Exclusive Content, we agree to take initial steps in accordance with our usual business practices for the exclusivity program to require that the user refrain from its prohibited or unauthorized use of such Exclusive Content. However, iStock disclaims responsibility for the compliance by purchasers and licensees with the terms of such agreements or for any unauthorized use by a third party, and you acknowledge and agree to the possibility of Exclusive Content being used in a manner that is not contemplated in this Agreement. You also agree that notwithstanding any rights you may have to pursue the licensees or sublicensees or other unauthorized users of such Exclusive Content at law, iStock shall have no liability to you or any person claiming through you for any breach by a licensee or sublicensee of the terms of any agreement respecting Exclusive Content or for any other unauthorized use. iStock will use reasonable commercial efforts to assist in the protection of your intellectual property rights, at your request and expense.
The Sound Artist 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 iStock and its licensors, and agrees that during the term of this Agreement and thereafter it shall not, without the express written consent of iStock, 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 iStock, 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 audio content belonging to others and other intellectual property.
Representations and Warranties
The Sound Artist (A) has the legal capacity and authority to enter into this Agreement and perform its obligations hereunder, (B) will comply with all applicable laws, including without limitation the Foreign Corrupt Practices Act and the U.K. Bribery Act, is not on the US Department of Treasury’s List of Specially Designated Nationals; (C) has the right to grant all of the rights contemplated to be provided under this Agreement, (D) has not granted, and for the term of this Agreement, shall not grant any rights or licenses to any Exclusive Content or any other intellectual property or technology that would conflict with this Agreement, and (E) has paid, in full, all amounts owing to any parties in respect of the production and recording of any Exclusive Content, including without limitation, any recording studios, producers, engineers and rental companies;
Neither you nor any other person or entity are making any of the Exclusive Content available for sale, licensing or other distribution to or through any other distributor, website (other than to or through a Distribution Partner) or other marketing, distribution, sale or licensing venue of any kind;
The Sound Artist is the sole and exclusive owner of the Exclusive Content or has all necessary rights and authorization from all musicians, performers, co-owners or co-creators related to the Exclusive Content. If you are not the sole creator of the Exclusive Content, you represent and warrant that you have legally enforceable written agreements with the authors, composers, performers, musicians and co-creators of the Exclusive Content under which the Exclusive Content is and will remain your sole and exclusive property or which grants you the right to enter into this Agreement. If requested by iStock, you shall supply it with copies of these agreements;
No portion of the Exclusive Content as delivered to iStock 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 Exclusive 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 Exclusive Content or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Exclusive Content or the Site in any way;
The Exclusive Content will include all necessary descriptive information to enable its effective marketing on the Site, which 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 Exclusive Content;
The Exclusive Content delivered to iStock hereunder represents wholly original creations and expressions of subject matter, and no Exclusive Content 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;
There are no liens or encumbrances on the Exclusive Content;
The Sound Artist has not registered the Exclusive Content with any performing or other rights societies anywhere in the world, including but not limited to, SOCAN, ASCAP, BMI, SESAC, PRS, Harry Fox Agency, CMRRA, SODRAC, GEMA, SACEM, SODRAC, SGAE, AGEDI, AIE, AOSGE, DAMA and JASRAC (a “Rights Society”) and the Exclusive Content is not and will not become subject to any rights granted by you, if any, to a Rights Society;
The Sound Artist is not and, for the term of this Agreement, will not become a member of or otherwise assign or grant rights to any Rights Society;
Neither iStock nor any Distribution Partner, licensee or sublicensee will be required to obtain any form of license from a Rights Society in connection with its use of the Exclusive Content hereunder, nor pay any fees or royalties to a Rights Society related to such use; and
The Exclusive Content is not created using any third party samples or loops which may be available in sequencing, digital audio work station or other like software (even if the license agreement for such software permits the samples or loops to be used in new works to be used or sold for commercial purposes).
Liability and Indemnity
You agree to be liable to and indemnify, defend and hold harmless iStock, the Distribution Partners, their respective parent and affiliates, and each of their respective directors, officers, employees, shareholders and agents, the licensees and sublicensees of Exclusive Content (collectively, the “iStock Parties”) 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 iStock Party as a result of or in connection with: (i) any use or alleged use of the Site or provision of Exclusive Content under your member name by any person, whether or not authorized by you; (ii) or resulting from any communication made or Exclusive Content uploaded under your member name; (iii) any breach by you of this Agreement; or (iv) any claim threatened or asserted against any iStock Party to the extent such claim is based upon a contention that any of the Exclusive Content used within the scope of this Agreement 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.
iStock 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 iStock’s defense of such claim.
The Sound Artist agrees that the iStock Parties shall not 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.
The Sound Artist agrees that iStock 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 a license agreement or alleged infringement of other rights of the Sound Artist. The Sound Artist hereby releases iStock from any and all claims the Sound Artist might have, either directly or indirectly, arising out of or in connection with a determination by iStock to proceed or not to proceed against any Infringer in any instance. iStock 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 iStock 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 iStock in connection with such action, be divided between the Sound Artist and iStock pursuant to the provisions of the Compensation section above. At all times, the Sound Artist shall have the right to proceed against any Infringer for any license violation or other infringing action. The Sound Artist 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 Sound Artist 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 Sound Artist and iStock pursuant to the provisions of the Compensation section above.
DISCLAIMER OF WARRANTIES
THE SITE, INCLUDING ANY AUDIO CONTENT CONTAINED THEREIN, ARE PROVIDED BY ISTOCK “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. ISTOCK DOES NOT REPRESENT OR WARRANT THAT THE SITE OR THE AUDIO CONTENT WILL BE MADE AVAILABLE FOR SALE OR LICENSE OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE.
ISTOCK DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY AUDIO 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 USE OF ANY OF THE AUDIO CONTENT OR INFORMATION CONTAINED THEREIN.
IN NO EVENT SHALL THE ISTOCK PARTIES 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 AUDIO CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF ISTOCK 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, ISTOCK’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 EXCLUSIVE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED BY ISTOCK FOR THE AUDIO CONTENT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED ONE HUNDRED ($100.00) 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 ISTOCK OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Term and Termination
This Agreement is effective until terminated. You may terminate this Agreement at any time by giving thirty (30) days written notice to iStock at artists@iStock.com or such other means of written notice acceptable to iStock which enables confirmation of your identity and your intention to terminate. You shall ensure that “Sound Artist Termination Request” appears in the subject line of the email or other communication. iStock may also terminate this Agreement for any reason by giving you thirty (30) days notice by e-mail at the last address contained in your membership information. Where this Agreement is terminated by iStock, unless otherwise indicated by iStock at the time of termination, you shall be deemed to have agreed to the [Sounds Artist Supply Agreement (Non-Exclusive)] and your Exclusive Content shall be deemed to be Accepted Content (as defined in the Sound Artist Supply Agreement (Non-Exclusive)) unless you advise iStock in writing within thirty (30) days of iStock’s notice of termination of this Agreement. If iStock terminates your membership pursuant to the terms of the Membership Agreement, such termination shall be deemed to be notice of termination of this Agreement, as well.
Either party may terminate this Agreement upon written notice effective immediately upon receipt 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 material breach of this Agreement.
In addition, iStock may deem an account to be terminated if there has been no log-in or other activity in the account for 24 months despite reasonable commercial efforts to contact Sound Artist based on the information provided through the Site as part of your account profile. If iStock is unable to contact you, you agree to forfeit any fees and credits in your account to iStock. If iStock is able to contact you, iStock shall pay to you the fees and credits in your account less an administrative charge of Fifteen ($15.00) United Stated Dollars if the address in your account profile is in North America and Thirty ($30.00) United States Dollars in other jurisdictions. If in the reasonable opinion of iStock you have made a material misrepresentation as to the capacity, identity or copyright ownership of Exclusive Content or the Sound Artist, you agree to forfeit all fees and credits in your account to iStock.
Effect of Termination
Upon the termination of this Agreement, the grant of authority given to iStock shall cease subject to the following conditions: (i) iStock shall remove Accepted Exclusive Content from the Site and Distribution Partners within ninety (90) days of the date of termination of this Agreement; (ii) notwithstanding termination, iStock shall have the right to continue licensing Accepted Exclusive Content until it is removed from the Site or other sites where Accepted Exclusive Content is distributed and for up to one (1) year following termination where such Accepted Content has previously appeared in iStock’s promotional materials, CD programs or Distribution Partner marketing programs; and (iii) regardless of the expiration or termination of this Agreement, iStock will continue, in accordance with this Agreement, to pay compensation due to the Sound Artist 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, iStock will be entitled to retain all amounts owing to the Sound Artist 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 shall not alter or affect the rights granted to licensees and sublicensees by iStock pursuant to this Agreement.
In the event Supplier terminates this Agreement and subsequently wishes to re-enter the exclusivity program and provide Exclusive Content, the Supplier may re-apply ninety (90) days after the termination date of this Agreement.
This Agreement will be governed in all respects by the laws of the State of New York, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from or related to this Agreement or its enforceability, or the business relationship between the parties, shall be finally settled by binding, confidential arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under JAMS’ Expedited Procedures in its Comprehensive Arbitration Rules and Procedures (“JAMS”) or of the International Center for Dispute Resolution (“ICDR”) in effect on the date of the commencement of the arbitration (the applicable rules to be at your discretion) to be held in one of the following jurisdictions (whichever is closest to you): Seattle, Washington; New York, New York; Los Angeles, California; London, England; Paris, France; Frankfurt, Germany; Tokyo, Japan; or Singapore. The arbitration proceedings shall be conducted in English and all documentation shall be presented and filed in English. The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, iStock shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in the opinion of iStock, such action is necessary or desirable. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any proceeding within the scope of this paragraph shall be commenced within two years of the acts, events, or occurrences giving rise to the claim.
You consent to service of any required notice or process upon you by email, 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 iStock related to the Site or this Agreement. If such a waiver is void or unenforceable by applicable law, you agree not to (iii) seek trial by jury; and (iv) commence or participate in any class action against iStock related to the Site or this Agreement
If iStock is obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, you agree to reimburse iStock for its legal fees, costs and disbursements if iStock is successful.
iStock’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 iStock’s prior written consent. iStock 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 is the entire agreement between the parties with respect to the subject matter hereof. This Agreement can be amended by the written agreement of the parties or by iStock 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 Sound Artist and it will be incorporated by reference into this Agreement.
This Agreement shall be binding upon the parties and enure to the benefit of their heirs, executors, personal representatives, successors and permitted assigns. Nothing in this Agreement shall be deemed to have created a joint venture, partnership or employment relationship between the parties.
If and to the extent you are submitting Content to iStock as an authorized representative of the applicable copyright owner(s), you acknowledge and agree that (i) you will ensure that such copyright owner(s) comply with the terms of this Agreement where necessary; and (ii) to the extent Royalties are paid to you in such capacity, you will be solely responsible for compensating the copyright owner(s) where applicable.
If you have concerns relating to this Agreement, please contact iStock at email@example.com
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 ISTOCK 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 ISTOCK, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND ISTOCK RELATING TO THE SUBJECT OF THIS AGREEMENT.