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6.0 - Flash Supply Agreement (Non-Exclusive)
This Agreement governs the terms by which flash developers provide flash file content to members of the iStockphoto.com community, on a non-exclusive basis through the web site located at http://www.istockphoto.com (the "Site"). [For the Flash Supply Agreement relating to exclusivity, click here]. This Flash Supply Agreement is in addition to the Terms of Use applicable to the Site, to the Membership Agreement that all persons providing content to or downloading content from the Site have previously entered into and to the Artist’s Supply Agreement by which photographic and content other than Flash content is provided to the Site. In the event of any inconsistency between this Agreement, the Membership Agreement, the Artist’s Supply Agreement and the Terms of Use, the terms of this Agreement shall govern.
Background of Agreement
This is a legal agreement between any member intending to flash content onto the Site (in this agreement referred to as “you” or the "Supplier") and iStockphoto LP ("iStockphoto") operator of the Site. The Supplier wishes to appoint iStockphoto as its non-exclusive agent to license and distribute Flash Content (as defined below) produced by the Supplier on the terms and conditions set forth in this Agreement and iStockphoto’s standard form of Content License Agreement [link: license.php]. Upon accepting the terms of this Agreement, you may make Flash Content available to iStockphoto by following the “Upload” procedures identified on the Site. Each upload of Flash Content will be governed by the terms and conditions of this Agreement, which will be confirmed by you upon each upload.
This is a fairly lengthy document, and it contains many important provisions that affect your rights and obligations. By ticking the correct box at the end of this Agreement and typing “I agree”, you thereby agree to be bound by the terms of this Agreement. We encourage you to print a copy of the Agreement for your records.
This Agreement remains in full force and effect until terminated in accordance with its terms. If at any time the terms and conditions of this Agreement are no longer acceptable to the Supplier, you must follow the termination procedures set forth below under “Term and Termination”.
Provision of Flash Content
The parties acknowledge that the Supplier may, from time to time, provide flash files [whether in .FLA or .SWF format], which files may include software, photographs, illustrations, audio files, video files, animations, data files, code snippets and other material (collectively, "Flash Content") to iStockphoto using the Upload procedures of the Site or such other procedures as the parties may mutually agree. iStockphoto, in its sole discretion, may determine which of such Flash Content is suitable for posting on the Site or other means of distribution, and only such Flash Content as it deems suitable will be considered “Accepted Flash Content” for the purposes of applicable provisions of this Agreement.
In addition to the terms of this Agreement, the parties acknowledge that the provision of all Flash Content is subject to the policies and procedures outlined in the Site, the terms of which are incorporated by reference into this Agreement. Any breach of the rules relating to acceptable content outlined in the Site will be deemed to be a breach of this Agreement.
Grant of Authority
The Supplier hereby appoints iStockphoto as Supplier's non-exclusive agent to license royalty-free Flash Content to third parties within the jurisdictions of iStockphoto’s business. For all Flash Content, Supplier grants iStockphoto the right to use, reproduce, distribute, redistribute, publish, republish, upload, post, transmit, package, repackage, produce and sell prints or similar image products or publicly perform or display Flash Content or portions of it to prospective licensees through the Site or other venues owned or operated by iStockphoto or its affiliates which it may determine from time to time, and the right to grant perpetual, non-exclusive and non-transferable licenses or sub-licenses to members in accordance with the terms of the Content License Agreement used by iStockphoto from time to time (a current copy of which can be found here) that the Supplier hereby acknowledges having reviewed and approved.
In addition to the foregoing grant, iStockphoto may use Accepted Flash Content for its own business purposes relating to the promotion of the Site and its distribution programs, and the licensing of Accepted Flash Content (including, without limitation, the use of the Accepted Flash Content and the Supplier’s registered and unregistered trademarks for marketing, sales and promotional efforts whether on the Site or through third parties). No compensation shall be due to the Supplier for use of Accepted Flash Content for such business purposes.
The Parties agree that all rights, including title and copyright, in and to the uploaded Accepted Flash Content will be retained by the Supplier, and no title or copyright is transferred or granted in any way to iStockphoto or any third party except as provided in this Agreement and the Content License Agreement. Except to its affiliated and associated companies or as specifically permitted in this Agreement, iStockphoto may not distribute Flash Content to any third party for the purposes of resale or re-license.
Intellectual Property Matters
The Supplier acknowledges that iStockphoto prohibits any Flash Content or any other material that infringes on any patent, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded to the Site.
By uploading Flash Content, you are warranting that you own all proprietary rights, including copyright, in and to the Flash Content necessary to grant the rights contemplated in the Content License Agreement. In addition, to the extent that the Flash Content contains images of people or persons, you represent and warrant that you have obtained a valid and binding model release from all required parties in substantially the same form as: http://www.istockphoto.com/docs/modelrelease.pdf that will permit the uses for such Flash Content contemplated in the Content License Agreement.
The Supplier agrees that neither iStockphoto nor any of its directors, officers, employees, partners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Flash Content.
Compensation
iStockphoto agrees to pay a portion of the fees collected in respect of Accepted Flash Content that is downloaded or otherwise purchased by members 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 Flash Content recorded by iStockphoto. The parties acknowledge that the Rate Schedule is subject to change in the sole discretion of iStockphoto in the ordinary course of its business without notice by posting such changes on the Site. If at any time the Rate Schedule is not acceptable to the Supplier, you may refrain from providing additional Flash Content or terminate this Agreement in accordance with its terms.
iStockphoto will endeavor to make payment of fees in respect of Accepted Flash Content on a monthly basis on or about the 15th day of the month following the purchase of Accepted Flash Content provided such fees aggregate a minimum of US$100, failing which fees owing will be retained until they exceed such minimum. In all cases, payment of fees to the Supplier will be net of:
(i) applicable taxes or other withholdings required by applicable law;
(ii) bad debts or other uncollectible sums;
(iii) legal and other reasonable fees incurred in enforcing this Agreement or the Flash Content License Agreement; and
(iv) any amounts owing by the Supplier to iStockphoto under this Agreement or otherwise. Without limiting the generality of the foregoing, iStockphoto is entitled to set-off against any amount owing to Supplier, all amounts to which iStockphoto is or may be entitled under this Agreement or otherwise at law, including withholding amounts as security for any pending or threatened claim relating to any matter which is the subject of a representation, warranty or indemnity of Supplier under this Agreement and including terminating any credits that may be outstanding in the Supplier’s account following a breach.
The Supplier agrees that during the term of this Agreement, no Accepted Flash Content will be posted or otherwise offered for sale or license through any other web-site or distribution venue at a price which is lower than the price being requested by iStockphoto on the Site.
Passwords
You acknowledge and agree that you will be responsible for each and every access or use of the Upload portions of the Site that occurs in conjunction with your Member Name and such passwords, and that iStockphoto is authorized to accept your Member Name and password as conclusive evidence that you wish to upload Flash Content pursuant to this Agreement. iStockphoto shall have no liability or responsibility to monitor the provision of Flash Content under your member name and password.
Managing Flash Content
iStockphoto does not and cannot review all communications or Flash Content uploaded to the Site and is not responsible for the content, quality, legal or technical compliance or consequences of your uploading such communications or Flash Content. Notwithstanding the foregoing, iStockphoto reserves the right to delete, move, refuse to accept or edit any communication or Flash Content that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or is otherwise unacceptable in its discretion. iStockphoto shall have the right but not the obligation to correct any errors or omissions in any Flash Content, as it may determine in its sole discretion. You acknowledge that any screening of Flash Content performed by iStockphoto to determine Accepted Flash Content is done as a courtesy only, and in no way diminishes your total responsibility therefor.
NOTICE: You acknowledge that the Flash Content you provide pursuant to this Agreement that becomes Accepted Flash Content may be purchased or licensed by members with the intention that such licensees will adhere to the terms of the Content License Agreement [link – license.php]. iStockphoto cannot take responsibility for the compliance by purchasers and licensees of the terms of such agreements, and you acknowledge and agree to the possibility of Flash Content being used in a manner that is not contemplated in this Agreement or the Flash Content License Agreement. You also agree that notwithstanding any rights you may have to pursue the licensees of such Flash Content at law, iStockphoto shall have no liability to you or any person claiming through you for any breach by a licensee of the terms of any agreement respecting Accepted Flash Content. iStockphoto will use commercial efforts to assist in the protection of your intellectual property rights, at your request and expense.
Confidential Information
The Supplier acknowledges that the Confidential Information (defined below) which it obtains through the entering into of this Agreement, the use of the Site and the provision of Flash 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, finances, research, development, know-how, trade-secrets, training materials, personnel, clients, methodologies, Site content belonging to others and other intellectual property.
Representations and Warranties
The Supplier hereby represents and warrants as follows:
(i) the Supplier has the authority to enter into this Agreement, is the sole and exclusive owner of the Flash Content (subject to any open source or other licenses identified in writing at the time of upload), has the right to grant all of the license rights contemplated to be provided under this Agreement, and has not granted any rights or licenses to any Flash Content or any other intellectual property or technology that would conflict with this Agreement;
(ii) no portion or element of the Flash 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 Flash 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 Flash Content or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Flash Content or the Site in any way;
(iii) the Flash Content will include all necessary descriptive information to enable its effective marketing on the Site, and full particulars of all source data necessary to verify suitability of the Flash Content for inclusion on the Site, which information will be complete and accurate in all material respects; and
(iv) the Flash Content delivered to iStockphoto hereunder represents original creations and expressions of subject matter, and no Flash 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.
Indemnity
You agree to indemnify, defend and hold iStockphoto and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Flash Content (collectively, the "iStockphoto Parties") harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any iStockphoto Party as a result of or in connection with: (i) any use or alleged use of the Site or provision of Flash Content under your Member Name by any person, whether or not authorized by you; (ii) or resulting from any communication made or Flash 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 Flash Content used within the scope of this Agreement and the Flash Content License Agreement infringes any copyrights, trade secrets, trademarks or other intellectual property rights of any third party.
iStockphoto reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with iStockphoto's defense of such claim.
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 using help@istockphoto.com or such other means of written notice acceptable to iStockphoto which enables confirmation of your identity and your intention to terminate. iStockphoto may also terminate this Agreement for any reason by giving you thirty (30) days notice by e-mail at the last address contained in your membership information. If iStockphoto terminates your membership pursuant to the terms of the Membership Agreement, or the Artist’s Supply Agreement, such termination shall be deemed to be notice of termination of this Agreement, as well. Any breach of this Agreement that gives rise to a right of termination of this Agreement, shall entitle iStockphoto to terminate the Artist’s Supply Agreement, as well.
Either party may terminate this Agreement upon written notice effective immediately upon receipt if the other party (a) 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 (b) makes an assignment for the benefit of creditors, or (c) 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 (d) is adjudicated insolvent or bankrupt, or (e) is in breach of this Agreement.
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 Flash Content from the Site within thirty (30) days of the termination of this Agreement; (ii) notwithstanding termination, iStockphoto shall have the right to continue licensing Accepted Flash Content until it is removed from the Site; (iii) regardless of the expiration or termination of this Agreement, iStockphoto will continue, in accordance with this Agreement, to pay compensation due to the Supplier in respect of licenses granted to members during any transitional period, subject to any rights of set-off under this Agreement or at law.
Upon termination, iStockphoto will be entitled to retain all amounts owing to the Supplier for a period of thirty (30) days to determine any applicable rights of set-off, and shall be entitled to deduct from such amounts, a reasonable administrative fee for establishing, managing and terminating your account.
Notwithstanding any other provision in this Agreement, the termination or expiration of this Agreement shall not alter or affect the rights granted to licensees or sub-licensees by iStockphoto pursuant to this Agreement.
Termination of this Agreement shall operate without prejudice to the iStockphoto’s rights, defenses and limitations of liability provided under this Agreement, the Membership Agreement the Artist’s Supply Agreement or the Terms of Use, which rights, defenses and limitations of liability shall survive termination of this Agreement. In addition, the provisions of this Agreement relating to: Managing Flash Content, Confidential Information, Representations and Warranties, Indemnity, Disclaimer of Warranties and all limitations of liability, shall survive termination of this Agreement and continue in full force and effect.
DISCLAIMER OF WARRANTIES
THE SITE, INCLUDING ANY FLASH 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 FLASH 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 FLASH CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE SITE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
LIMITATION OF LIABILITY
YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN.
IN NO EVENT SHALL ISTOCKPHOTO OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF ISTOCKPHOTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
IN ANY EVENT, ISTOCKPHOTO’S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE SITE OR THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED BY ISTOCKPHOTO FOR THE FLASH CONTENT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED ONE THOUSAND ($1,000.00) UNITED STATES DOLLARS.
SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF ISTOCKPHOTO OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Applicable law
The Site is controlled, operated and administered by iStockphoto from within the Province of Alberta, Canada. The Site can be accessed from all provinces and territories of Canada, as well as from other countries around the world. As each of these jurisdictions has laws that may differ from those of the Province of Alberta, you acknowledge and agree that this Agreement will be governed under the laws of the Province of Alberta and the federal laws of Canada applicable therein (without reference to conflicts of laws principles). You hereby irrevocably submit to the exclusive jurisdiction of the Courts of the Province of Alberta, Canada with respect to the subject matter of this Agreement. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
You consent to service of any required notice or process upon you by 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.
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. In addition and without limiting the generality of any other provision, in the event iStockphoto is required to contact any of its licensees to advise them to cease using any Flash Content provided by Supplier as a result of a breach of any of the provisions of this Agreement or applicable law, the Supplier shall wholly indemnify iStockphoto for all costs, expenses, damages and liability incurred or to be incurred in that regard.
General
You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the terms of the Membership Agreement and Terms of Use and any other agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Agreement you agree to be bound by them.
iStockphoto’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
This Agreement is personal to you and is not assignable by you without iStockphoto’s prior written consent. iStockphoto may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
This Agreement can be amended by the written agreement of the parties or by iStockphoto posting amendments on the Upload portion of the Site. Continued provision of Flash Content or failure to terminate this Agreement within thirty (30) days of posting of such amendment will be deemed to be acceptance of the amendment by the Supplier and it will be incorporated by reference into this Agreement.
The parties have requested that this Agreement and all related documents be drawn up in English. Les parties ont demand que cette convention ainsi que tous les documents qui s'y rattachent soient en anglais.
Flash® is a registered trademark of Adobe Inc.
Contact
If you have concerns relating to this Agreement, please contact iStockphoto at help@istockphoto.com or via phone at (403) 265-3062.
Acknowledgement
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF ISTOCKPHOTO AGREEING TO PROVIDE A MEANS FOR THE SALE OR LICENSE OF YOUR ACCEPTED CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND ISTOCKPHOTO, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND ISTOCKPHOTO RELATING TO THE SUBJECT OF THIS AGREEMENT.
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