SOUND ARTIST SUPPLY AGREEMENT (EXCLUSIVE)
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 iStockphoto.com community, on an exclusive basis through the web site located at www.istockphoto.com (the “Site”) and to other prospective licensees through other distribution venues as provided for in this Agreement. [For the non exclusive supply agreement, click here.] This Agreement contains many important provisions that affect your rights and obligations. BY TICKING THE CORRECT BOX AT THE END OF THIS SOUND ARTIST SUPPLY AGREEMENT (EXCLUSIVE) (THE “AGREEMENT”) AND TYPING “I AGREE”, YOU THEREBY 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 iStockphoto. Should you wish to become a member of any such organization during the term of this Agreement, you must first terminate this Agreement by following the rules in Section 13(a).
Background of Agreement
- This is a legal agreement between any member intending to upload Exclusive Content onto the Site and iStockphoto LP, a subsidiary of Getty Images, Inc. (“iStockphoto” or “us” or “we”). iStockphoto is operator of the Site. The Sound Artist wishes to appoint iStockphoto 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 iStockphoto by following the “Upload” procedures and policies identified on the relevant portion of 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 iStockphoto 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 iStockphoto as being non-exclusive content.
- Notwithstanding the definition of Exclusive Content and the exclusive agency created by this Agreement, nothing shall restrict the Sound Artist from establishing or maintaining a personal portfolio web-site 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 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 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 iStockphoto 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 iStockphoto’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 iStockphoto 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 iStockphoto 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 iStockphoto 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 iStockphoto the exclusive worldwide right to market and grant perpetual, worldwide, and non-exclusive licenses or sublicenses to end-users either: (i) through the Site or via a portable interface that links back to the Site; (ii) through other venues owned or operated by iStockphoto or its parent or affiliated companies or (iii) through third party Distribution Partners (defined in Section 3(d)). iStockphoto 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 iStockphoto 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 (i) theatrically, (ii) on all forms of television including cable, cable transmission, free, pay, subscription, syndicated, video-on-demand, CATV and satellite, (iii) on radio for broadcast over the air, satellite broadcast, or internet whether by streaming or otherwise, (iv) on the internet and/or mobile devices via browser, device or download, and (v) 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 iStockphoto 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, iStockphoto may use 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 iStockphoto, 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 iStockphoto or third party distributors (each a “Distribution Partner”). iStockphoto 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 paid to you shall be as set out in the Rate Schedule (defined below).
- iStockphoto 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 iStockphoto’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 iStockphoto 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 iStockphoto, 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 iStockphoto, its licensees and sublicensees to use Exclusive Content without being credited as the author; (ii) grant to iStockphoto, its licensees and sublicensees the right to make adaptations of the Exclusive Content and to exploit the Exclusive Content as provided in article 3 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 iStockphoto 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 iStockphoto in this Agreement.
- iStockphoto 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.
- iStockphoto shall determine the price to be charged to licensees and sublicensees for the download and use of Exclusive Content. These prices are subject to change in the sole discretion of iStockphoto in the ordinary course of its business.
- iStockphoto agrees to pay you royalties equal to a portion of the fees collected in respect of Accepted Exclusive Content that is downloaded or otherwise licensed by licensees and sublicensees according to the rate schedule set forth on Appendix "A" to this Agreement, as it may be modified from time to time (the “Rate Schedule”) and the licensing of Exclusive Content as recorded by iStockphoto and the Distribution Partners. The parties acknowledge that the Rate Schedule may differentiate among various types of Exclusive Content, such as sound, sample, loop, and song or otherwise and among the sites/Distribution Partners through which the Content is distributed or otherwise in accordance with its terms. Subject to applicable law, the Rate Schedule is subject to change in the sole discretion of iStockphoto upon providing you 30 days notice by e-mail at the last address contained in your membership information and by posting such changes on the Site. If at any time the Rate Schedule is not acceptable to the Sound Artist, you may terminate this Agreement in accordance with its terms.
- In response to a written request, iStockphoto will endeavor to make payment of royalties 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, except when sales reporting from a Distribution Partner is delayed, in which case payments will be made in the month following the date such sale is reported, provided such royalties aggregate a minimum of US$100, failing which royalties owing will be retained until they exceed such minimum. In all cases, payment of royalties to the Sound Artist will be net of: (i) applicable taxes or other withholdings required by applicable law; (ii) bad debts or other uncollectible sums; (iii) cancellations or refund of a license where the original sale has been reported to you, including but not limited to where due to a fraudulent transaction; (iv) overpayment of royalties in a prior period; (v) legal and other reasonable fees incurred in enforcing this Agreement; and (vi) any amounts owing by the Sound Artist 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 Sound Artist, 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 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 iStockphoto 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 section 5 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 iStockphoto shall not be required to pay any royalties to the Sound Artist if iStockphoto 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 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 exclusive license of Exclusive Content, 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 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 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
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, iStockphoto 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, iStockphoto 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. iStockphoto will use reasonable commercial efforts to assist in the protection of your intellectual property rights, at your request and expense.
- 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 uploaded to the Site and is not responsible for the content, quality, or consequences of your uploading such Exclusive Content. 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, the applicable law, or any of iStockphoto’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 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, as it may determine in its sole discretion. You acknowledge that any screening of Exclusive Content performed by iStockphoto to determine Accepted Exclusive Content is done as a courtesy only. iStockphoto reserves the right to assign an International Standard Recording Code to Exclusive Content that is uploaded without such code.
- iStockphoto shall make good faith efforts to organize the Exclusive Content on the Site in a rational format. However, iStockphoto 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 iStockphoto 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 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 the Rate Schedule.
- 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 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 audio content belonging to others and other intellectual property.
Representations and Warranties
- The Sound Artist (i) has the legal capacity and authority to enter into this Agreement, (ii) has the right to grant all of the rights contemplated to be provided under this Agreement, (iii) 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 (iv) 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 an affiliate of iStockphoto as permitted by us in writing) 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 iStockphoto, you shall supply it with copies of these agreements;
- No portion of the Exclusive 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 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 iStockphoto 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 iStockphoto 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 iStockphoto, 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 “iStockphoto 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 iStockphoto 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 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 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.
- 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 Sound Artist agrees that the iStockphoto 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 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 a license agreement or alleged infringement of other rights of the Sound Artist. The Sound Artist hereby releases iStockphoto from any and all claims the Sound Artist 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 Sound Artist and iStockphoto 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 iStockphoto pursuant to the provisions of the Compensation section above.
DISCLAIMER OF WARRANTIES
- THE SITE, INCLUDING ANY AUDIO 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 AUDIO 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 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 ISTOCKPHOTO 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 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 EXCLUSIVE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED BY ISTOCKPHOTO 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 ISTOCKPHOTO 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 iStockphoto at artists@iStockphoto.com or such other means of written notice acceptable to iStockphoto 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. iStockphoto 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 iStockphoto, unless otherwise indicated by iStockphoto 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 iStockphoto in writing within thirty (30) days of iStockphoto’s notice of termination of this Agreement. 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, 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, iStockphoto 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 iStockphoto is unable to contact you, you agree to forfeit any fees and credits in your account to iStockphoto. If iStockphoto is able to contact you, iStockphoto 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 iStockphoto 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 iStockphoto.
Effect of Termination
- Upon the termination of this Agreement, the grant of authority given to iStockphoto shall cease subject to the following conditions: (i) iStockphoto shall remove Accepted Exclusive Content from the Site within thirty (30) days of the date of 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 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 iStockphoto's promotional materials, CD programs or Distribution 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 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, iStockphoto 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 iStockphoto 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.
- 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 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 iStockphoto 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 iStockphoto related to the Site or this Agreement
- 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.
- 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 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 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 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.
- 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.
If you have concerns relating to this Agreement, please contact iStockphoto at email@example.com or via phone at 866-478-6251.
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.
© iStockphoto LP 2011.