THIS IS A LEGAL AGREEMENT (THE "AGREEMENT") BETWEEN YOU AND A SUBSIDIARY OF GETTY IMAGES, INC., AS IDENTIFIED IN SECTION 10.10 BELOW ("ISTOCK"). THIS AGREEMENT APPLIES TO SUBSCRIPTIONS PURCHASED VIA THE WEB AND VIA LOCAL SALES REPRESENTATIVES, AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOG (PHYSICAL) DELIVERY OF CONTENT. BY ORDERING A SUBSCRIPTION, YOU ARE CONFIRMING THAT YOU HAVE CAPACITY TO FORM A CONTRACT UNDER ITS LOCAL LAWS.
Last updated: November 2014
1. Definitions. In this Agreement the following definitions apply:
1.1 "Invoice" means the computer-generated or pre-printed standard form invoice provided by iStock that shall include, without limitation, the iStock licensing company, the subscription selected and the corresponding price for the subscription ("Subscription Fee"). The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
1.2 "Content" means any photographic image, illustration, animation or Flash file visual representation generated optically, electronically, digitally or by any other means or in any media or other material that you are downloading from istock.com or otherwise receiving from iStock, together with any accompanying material. Any reference in this Agreement to the Content shall be to each individual item within the Content and also to the Content as a whole.
1.3 "User" means the individual who: (i) downloads, manipulates, edits, modifies or saves the digital file containing the Content; (ii) is otherwise directly involved in the creative process utilizing the Content; or (iii) incorporates the Content within any derivative work.
1.4 “You” means you, or, except in respect of Section 3.3, if you are accepting this Agreement on behalf of your employer, client or member account entity, then “you” means that employer, client or entity.
2. Grant of Rights. Subject to the terms of this Agreement:
2.1 iStock grants to you a non-exclusive, non-transferable, non-sublicensable, worldwide right to access the iStock subscription and display, use, reproduce, publish, alter, and manipulate the Content made available to you through the subscription pursuant to the terms of the Content License Agreement in effect at the date of download (or other delivery to the Licensee) of the Content. iStock reserves the right, in its discretion, to change or modify all or any part of the Content License Agreement at any time, effective upon being published on istock.com. The Content License Agreement shall be incorporated into this Agreement and all references to the Agreement shall include the Content License Agreement.
2.2 NOTWITHSTANDING ANYTHING ELSE IN THE CONTENT LICENSE AGREEMENT, IF YOU HAVE PURCHASED A TEAMSHARE SUBSCRIPTION OPTION, YOU ARE GRANTED THE NUMBER OF SEAT LICENSES REFLECTED ON YOUR INVOICE FOR USE, ACCESS AND DOWNLOAD OF THE CONTENT. IF YOU HAVE NOT PURCHASED THE TEAMSHARE SUBSCRIPTION OPTION, YOU ARE GRANTED A ONE (1) USER SEAT LICENSE FOR ACCESS, DOWNLOAD AND USE OF THE CONTENT. A User may not download Content and share such Content with a non-User or act as a designated downloader who shares Content with non-Users.
3.1 You may not share or disclose any password to any other user or third party other than as specifically provided for herein and you agrees to hold all passwords for any subscription in the strictest of confidence. If you breach any provision of this section, iStock shall be entitled to (i) terminate this Agreement immediately, (ii) retain all payments paid pursuant to this Agreement, and (iii) seek any legal or equitable remedies.
3.2 You may not download more than the permitted number of downloads of Content authorized under the subscription plan purchased by you. You shall not stockpile, download, or otherwise store Content not used during the Term for future use. iStock may (a) monitor, as frequently as iStock determines, anything you download from iStock.com, (b) track any abuse of your username(s) and password(s), and (c) suspend or terminate your subscription, without notice, if iStock believes there is a violation of this Agreement and/or any abuse or sharing of your username and password.
3.3 Where you are licensing Content on behalf of an employer, client or other entity, you hereby represents and warrants that: (i) you are authorized to act as an agent on behalf of such employer, client or other entity and have full power and authority to bind such employer, client or other entity to this Agreement; and (ii) if such employer, client or other entity subsequently disputes such power or authority, you shall be bound and liable for any failure of such employer, client or other entity to comply with this Agreement. Nothing in this Section 3.3 shall serve to excuse your obligation to make payment to iStock of the cost of the Subscription.
4. User Accounts.
iStock will provide you with a number of User accounts as specified in the Invoice, to access Content on the iStock website. You will be responsible for tracking all activity for each User account and shall, furthermore: (a) maintain the security of all passwords and identifications issued in connection with each User account; (b) notify iStock immediately of any unauthorized use of any User account or other breach of security; (c) accept all responsibility for any and all activities that occur under each User account; and (d) accept all risks of unauthorized access to the User accounts by individuals acting or purportedly acting on your behalf.
5. ISTOCK REPRESENTATIONS AND WARRANTIES, LIMITATION OF LIABILITY
5.1 EXCEPT AS SPECIFICALLY PROVIDED FOR IN THE CONTENT LICENSE AGREEMENT, ISTOCK DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE CONTENT OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.2 ALL WEBSITES OF ISTOCK AND ITS DIVISIONS AND AFFILIATE COMPANIES AS WELL AS FEED(S) AND SIMILAR ELECTRONICALLY-DELIVERED CONTENT WILL BE PROVIDED BY ISTOCK ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOU ACKNOWLEDGE THAT WEBSITES AND PRODUCTS MAY BE SUBJECT TO TEMPORARY SHUTDOWNS FROM TIME TO TIME FOR MAINTENANCE OR DUE TO CAUSES BEYOND REASONABLE CONTROL AND THAT ISTOCK SHALL NOT HAVE ANY LIABILITY TO YOU BY REASON OF SUCH SHUTDOWNS. UNDER NO CIRCUMSTANCES SHALL ISTOCK OR ANY PARTY INVOLVED IN CREATING, PRODUCING, OR DISTRIBUTING SUCH WEBSITES OR PRODUCTS BE LIABLE FOR ANY DAMAGES WHATSOEVER RESULTING FROM YOUR USE OR INABILITY TO USE THE SAME, INCLUDING, BUT NOT LIMITED TO, THE RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR ELECTRONIC MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS THERETO.
5.3 ISTOCK SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF ISTOCK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY OR ON YOUR BEHALF MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION FIRST AROSE. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES. WITHOUT LIMITING ANY OTHER TERM HEREIN, ISTOCK SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFICATIONS MADE TO THE CONTENT BY YOU OR THE CONTEXT IN WHICH CONTENT IS USED BY YOU.
6. Your Indemnification. You shall defend, indemnify and hold harmless iStock and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside attorneys' fees), arising out of or as a result of claims by third parties relating to any actual or alleged breach by you of this Agreement.
7. Interest on Overdue Invoices. If you fails to pay the Invoice in full within the time specified in the Invoice, iStock may add a service charge of one-and-one-half percent (1.5%) per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received.
8. Unauthorized Use and Termination. Any use of Content in a manner not expressly authorized by this Agreement, which includes the Content License Agreement, (including, without limitation, access to the iStock subscription and use of Content by more than one (1) User without purchase of additional seat licenses and use of any Content not incorporated into an end product, service, campaign or publication using independent skill and effort prior to the date which is 30 days following the end date of your subscription) constitutes copyright infringement, entitling iStock to exercise all rights and remedies available to it under copyright laws around the world. You shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party. iStock reserves the right to terminate this Agreement in the event you: (i) enters this Agreement after having received notice of unauthorized use from iStock relating to the Content; (ii) fails to pay the Subscription Fee in full within the time specified in the Invoice; or (iii) otherwise breaches the terms of these Subscription Terms. Upon termination, you must immediately (I) stop using the Content; and (II) destroy or, upon the request of iStock, return to iStock the Content and, in the case of termination by iStock for cause, any product, service, campaign or publication embodying the Content in your possession or control.
9. Subscription Cancellation. If you request in writing to cancel a subscription within 14 days of the date of purchase and provided that you have downloaded no more than five (5) items of Content and has made no use of any Content since the date of purchase, then iStock shall cancel the applicable subscription and issue a 100% credit to your account or credit card. In the event of such cancellation, the Grant of Rights under Section 2 and the Content License Agreement shall be revoked, and you shall immediately delete and/or remove the Content from its premises, computer systems and storage (electronic or physical). Any use of Content acquired pursuant to a subscription that has been cancelled shall constitute unauthorized use and shall be subject to the terms set forth in Section 8.
10. Miscellaneous Terms.
10.1 Audit/Certificate of Compliance. Upon reasonable notice, you shall provide sample copies of uses of the Content to iStock. In addition, upon reasonable notice, iStock may, at its discretion, either through its own employees or through a third party, audit your records directly related to this Agreement and use of Content in order to verify compliance with the terms of this Agreement. If any such audit reveals an underpayment by you to iStock, in addition to paying iStock the amount of such underpayment, you shall also reimburse iStock for the costs of conducting such audit. Where iStock reasonably believes that Content is being used by more than the authorized number of Users, or that Content is being used outside of the scope of the license granted under this Agreement, you shall, at iStock’s request, provide a certificate of compliance signed by you (and if you are a corporate entity, one of your officer’s), in a form to be approved by iStock.
10.2 Electronic Storage. For all Content that you take delivery of in electronic form, you must retain the copyright symbol, the name of iStock, the Content's identification number and any other information as may be embedded in the electronic file containing the original Content. You shall maintain a robust firewall to safeguard against unauthorized third-party access to the Content.
10.3 Withdrawal. iStock makes no representations or warranties that all Content and/or Content collections will be available for use during the Term. iStock may discontinue licensing certain Content and/or Content collections in its sole discretion.
10.4 Governing Law. 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). This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time the Content was downloaded, or such other address as you may advise us in writing to use, from time to time.
10.5 Arbitration. 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 finally and confidentially settled under the Rules of Arbitration of the International Chamber of Commerce by a single Arbitrator appointed in accordance with such rules. The arbitration shall take place in Calgary, Alberta, and shall be conducted in the English language. 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. The judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. 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 arbitration proceeding shall be commenced within two years of the acts, events or occurrences giving rise to the claim.
10.6 Severability. If one or more of the provisions contained in the Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them enforceable.
10.7 Waiver. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of either party in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by either party of any such rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.
10.8 Entire Agreement. No terms or conditions may be added or deleted unless made in writing and either accepted in writing by an authorized representative of both parties or issued electronically by iStock and accepted in writing by your authorized representative. Notwithstanding the foregoing, iStock reserves the right to change any of the terms of this Agreement at any time, and you agree to be bound by such changes. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other communication sent by Licensee, this Agreement shall govern.
10.9 Taxes. Licensee agrees to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the Content, pursuant to this or the Content License Agreement.
10.10 Licensing Company. The licensing entity under this Agreement shall be determined by your billing address, as follows:
|Your location||Licensing Entity|
|United States||Getty Images (US), Inc.|
|Spain||Getty Images Sales Spain SL|
|Portugal||Getty Images Sales Portugal, Unipessoal, Lda.|
|Australia||Getty Images Sales Australia Pty Limited|
|New Zealand||Getty Images Sales New Zealand Limited|
|Malaysia||Getty Images Malaysia Sdn Bhd|
|Thailand||Getty Images Digital (Thailand) Ltd|
|Philippines||Getty Images Pte Limited, Philippines branch|
|Hong Kong||Getty Images Sales Hong Kong Limited|
|Singapore||Getty Images Sales Singapore Pte Limited|
|India||Getty Images Media India Pvt Limited|
|Japan||Getty Images Sales Japan GK|
|United Arab emirates, Bahrain, Jordan, Kuwait, Lebanon, Oman, Qatar, Saudi Arabia, Yemen||Getty Images Middle East FZ LLC|
|Turkey||Getty Images Turkey Medya Hizmetleri Ltd Şti|
|All other countries||Getty Images International|
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