PLEASE READ THIS AGREEMENT (THE “AGREEMENT”) CAREFULLY. THIS AGREEMENT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS AND CONSTITUTES A BINDING AGREEMENT BETWEEN IMAGES OF BIRMINGHAM (“IMAGES OF BIRMINGHAM”) AND ANY MEMBER (A “USER MEMBER”) WHO DOWNLOADS A PHOTOGRAPH, ILLUSTRATION, IMAGE OR OTHER PICTORIAL OR GRAPHIC WORK (THE "CONTENT") FROM THE WWW.IMAGESOFBIRMINGHAM.CO.UK WEBSITE (THE “SITE”). THE USER MEMBER ACKNOWLEDGES AND AGREES THAT, BY USING OR PAYING FOR ANY CONTENT FROM IMAGES OF BIRMINGHAM, THE USER MEMBER SHALL BE BOUND BY AND COMPLY WITH ALL OF THE TERMS OF THIS AGREEMENT, AND THAT THIS AGREEMENT APPLIES TO ANY CONTENT THAT THE USER MEMBER DOWNLOADS. IF YOU DO NOT AGREE WITH ANY OF THE APPLICABLE TERMS, DO NOT OBTAIN OR USE ANY CONTENT FROM IMAGES OF BIRMINGHAM.
1. Parties and Background of Agreement
This Agreement is a binding legal agreement between IMAGES OF BIRMINGHAM and any User Member of the Site who desires to download and use Content.
(a) Content on the Site is sublicensed by IMAGES OF BIRMINGHAM from individual photographers contributing to IMAGES OF BIRMINGHAM (the “Artist Members”). The Content is owned by such Artist Members. In uploading Content, Artist Members authorise IMAGES OF BIRMINGHAM to grant licenses to use their Content to Member Users, in accordance with the terms and conditions of this Agreement.
(b) For purposes of this Agreement, “you” or “User Member” means either: (a) the individual listed as the registrant of the Membership Account through which the Agreement and the license(s) granted hereunder are entered (a “Registrant”), or (b) if a Registrant is entering into this Agreement and the license(s) granted hereunder are for the benefit of, and/or as an agent on behalf of, Registrant’s employer (“Employer”) and/or a third party (“Principal”) then such Employer or Principal. If a Registrant is entering into this Agreement and the licenses hereunder for the benefit of, and/or as an agent on behalf of an Employer and/or a Principal, then the Registrant: (a) represents and warrants that such Principal and/or Employer has authorised the Registrant to enter into this Agreement, that the licenses granted hereunder are on that Principal’s and/or Employer’s behalf, that such Principal and/or Employer has agreed to be bound hereby and that the Registrant has actual and express authority to act on behalf of and bind such Principal and/or Employer to the terms of this Agreement; (b) the Content (and any use thereof) is solely for the benefit of the Employer and or the Principal and that the Registrant will not use the Content or (any use thereof) for the benefit of any other person or entity without entering into a separate license with IMAGES OF BIRMINGHAM, and (c) the Registrant will comply with the terms and conditions of this Agreement and will be jointly and severally liable for any breach of the terms of this Agreement by the Principal and/or the Employer.
2. Grant of Sublicense
Subject to the terms and conditions of this Agreement, IMAGES OF BIRMINGHAM hereby grants to the User Member a non-exclusive, worldwide, non-transferable sublicense to use, reproduce or display the Content in accordance with the sublicense option(s) selected by the User Member as each option is described below. The User Member acknowledges and agrees that, except for the rights specifically sublicensed under this Agreement, the User Member shall not have any right, title or interest in or to, and in any event shall have no ownership of, the Content, including any copyright and other intellectual property rights.
(a) Basic License - Permitted Uses: Subject to the provisions of this Agreement (and any other agreements or policies incorporated herein by reference) as well as the restrictions described under Section 3 (Prohibited Uses), the User Member is granted a non-exclusive sublicense and may reproduce, publicly display, make certain works derived from, and distribute the Content for the uses permitted below for a period of one year from the date of purchase, and may distribute such works, subject to the following limits:
(i) an unlimited number of advertising, editorial and promotional projects, including hard copy printed materials, product packaging, presentations, advertising, editorial and promotional purpose film and video presentations, commercials, catalogues, brochures, promotional greeting cards and promotional postcards (i.e. not for resale, license or other distribution);
(ii) an unlimited number of impressions for the purpose of on-line, electronic, and mobile publications and mobile applications, including web pages and advertising, promotional and editorial projects; and
(iii) an unlimited number of impressions, but only in a modified or derivative form, for the purpose of on-line, electronic, and mobile publications and mobile applications, including web pages and advertising, promotional and editorial projects, to a maximum of 1920 x 1080 pixels for image or illustration Content and 1920x1080 pixels for video content (regardless of the resolution of the Content available for downloading from the Site) (unlimited copies).
Unless the User Member licenses the largest size image available (and therefore, an Extended License), the User Member may not do anything with the Content that is not expressly permitted in the preceding paragraphs. For greater certainty, the User Member may not:
1. use the Content in design template applications intended for resale, whether on-line or not, including, without limitation, website templates, Flash templates, business card templates, electronic greeting card templates, and brochure design templates;
2. use the Content in any posters (printed on paper, canvas or any other media) or other items for resale, license or other distribution for profit, including using or displaying the Content on websites or other venues designed to induce or involving the sale, license or other distribution of “on demand” products, including postcards, mugs, t-shirts, posters, electronic templates, and other items; and install and use the Content in more than one location at a time or post a copy of the Content on a network server or web server for use by other users.
(b) Extended License (through the licensing of the largest images available on IMAGES OF BIRMINGHAM) – Permitted Uses: A User Member may acquire an Extended License which permits the User Member, subject to the provisions of this Agreement (and any other agreements or policies incorporated herein by reference) as well as the restrictions described under Section 3 (Prohibited Uses), to use Content for certain permitted purposes. The User Member is granted the rights available under the Basic License, in addition to and as amended by the rights and uses associated with the applicable Extended License. In each case, the User Member will be required to pay an additional fee for such usage under an Extended License. An Extended License may be acquired by the User Member to reproduce, publicly display, make certain works derived from, and distribute the Content for the uses permitted below, and may distribute such works, subject to the following limits in section 3.
In addition to the rights granted under each of the license options above, the User Member shall have the right to transfer files containing the Content or permitted derivative works to employees, or have the Content reproduced by subcontractors, provided that such employees and subcontractors agree to abide by the restrictions of this Agreement. The User Member may also convey to a third party (such as a printer) temporary copies of the Content that are integral to the work product and without which the work product could not be completed. Third parties, employees and subcontractors shall have no further or additional rights to use the Content and shall not access or extract it from any other file provided. The User Member may also create a digital library, network configuration or similar arrangement to allow the Content for the purpose of allowing such Content to be viewed by its employees, partners and clients.
3. Prohibited Uses
Except as expressly permitted in Section 2 above, the User Member shall have no right to sell or otherwise distribute the Content or any reproductions thereof to any third parties, whether alone or incorporated or together with or onto any item of merchandise or other work of authorship, in any media or format now or hereafter known. The User Member shall have no right to grant further sublicenses. Without limitation to any aforementioned restrictions, the User Member acknowledges, agrees and warrants that he or she shall not:
(a) sublicense, sell, assign, convey or transfer to any third party the Content or any rights thereto under this Agreement or sell, license or distribute Content or any modified Content as stand-alone files or as part of an online database or any other database, or any derivative product containing the Content in such way that would allow a third party to download, extract or access the Content as a stand-alone file;
(b) share the Content with any other person or entity except as expressly permitted under this Agreement;
(c) use the Content in a way that is considered by IMAGES OF BIRMINGHAM in its sole discretion, or under applicable law, that may be considered pornographic, obscene, immoral, infringing, defamatory or libellous in nature, or that would be reasonably likely to bring any person or property reflected in the Content into disrepute;
(d) post the Content online in downloadable format, post the Content on an electronic bulletin board or enable the Content to be distributed via mobile telephone devices or shared in any peer-to-peer or similar file sharing arrangement;
(e) download or store the Content on more than one computer at the same time, except that the User Member may make a single backup copy to be stored on media separate from the single permitted computer;
(f) use, reproduce, distribute or display the Content in connection with any goods or services intended for resale or distribution which primary value lies in the Content itself, including, without limitation, mugs, t-shirts, posters, greeting cards, posters or other merchandise, and any of the foregoing in "print on demand" or tangible or electronic formats, as applicable;
(g) use, reproduce, distribute or display the Content (including, without limitation, by itself or in combination with any other work of authorship) in any manner that is libellous or slanderous or otherwise defamatory, obscene or indecent;
(h) remove any notice of copyright, watermark, trademark or other intellectual property right, or other information that may appear on, embedded in, or in connection with the Content in its original downloaded form, it being understood that the User Member shall reproduce any and all such notices in any backup copy of the file comprising the Content that the User Member makes;
(i) incorporate the Content into a trademark, business name, design mark, service mark or logo;
(j) take any action in connection with the Content that violates any law, regulation or statute in an applicable jurisdiction;
(k) use the Content in an editorial manner, without the following credit adjacent to the Content or in audio/visual production credits: "© [Name of Photographer] / IMAGES OF BIRMINGHAM”;
(l) take any action in connection with the Content that violates or infringes the intellectual property or other rights of any person or entity, including, without limitation, the moral rights of the creator of the Content and the rights of any person who, or any person whose property, appears in the Content;
(m) use or display the Content in a way that would reasonably imply that the creator of the Content, or the persons or property appearing in the Content (if any) uses or personally endorses any business, product, service, cause, association or other endeavour; or
(n) use any Content that includes a model over the age of 18 in a manner that depicts such person in a potentially sensitive subject matter, from the perspective of a reasonable person; including, but not limited to sexual activity or implied sexual activity, HIV/AIDS, substance abuse, promotion of tobacco use, political endorsements, or any implication that the model engages in activity that is immoral or illegal. The sole exception to this restriction is any content where it is clear that the intended purpose of the image is to convey such a sensitive use.
(o) use any Content that includes a model under the age of 18 in any sexual manner, including but not limited to issues of sexual abuse, human trafficking, sexually transmitted infections, abortion, sexual violence, and any sexual activity or contact. Images may also not be used for any fostering or adoption advertising or editorial context. The sole exception to this restriction is any Content where it is clear that the intended purpose of the image is to convey such a sensitive use.
4. Payments and Pricing
Each time the User Member downloads and licenses Content the User Member agrees to pay all fees and charges associated with the order and that all such fees and charges and additional amounts (including taxes and late fees, as applicable) will be charged to a credit card or other payment method the User Member has provided. If no credit card has been provided, then the User Member agrees to pay, in full, the total amount invoiced to the User Member within 30 days . The User Member shall pay IMAGES OF BIRMINGHAM a sublicense fee in accordance with IMAGES OF BIRMINGHAM’s Standard pricing and payment policies. Without limitation, the User Member is responsible for reporting and payment of any taxes applicable to his or her license and use of Content.
5. Ownership and Intellectual Property
Each Artist Member retains all right, title and interest in and to Content provided by such Artist Member, including but not limited to all copyrights, patent rights, trademarks, trade secrets and all other property rights. The User Member acknowledges and agrees that, except for the licenses granted by this Agreement, no rights in any Content are granted to the User Member. IMAGES OF BIRMINGHAM and/or its Artist Member (as applicable) shall retain the right to use, reproduce or display the Content.
6. Representations and Warranties
In addition to the representations and warranties made by the User Member above, each of IMAGES OF BIRMINGHAM and the User Member hereby represent and warrant that it, or he or she, has the right to enter into this Agreement.
The User Member agrees to defend, indemnify and hold harmless IMAGES OF BIRMINGHAM and its affiliates, and their respective officers, directors, employees, members, owners, agents, representatives, licensors and (sub)licensees (collectively, “Indemnitees”) from and against all claims, damages, obligations, judgments, losses, liabilities or any other expenses (including attorney fees and disbursements) or other liability arising from the User Member’s breach of any of his or her representations, warranties or obligations under this Agreement, and from any and all uses of the Content, including, without limitation, any claims or actions based on infringement or violation of intellectual property rights, libel or slander or other defamation, right of privacy or "false light", right of publicity or blurring or distortion or alteration whether or not intentional. IMAGES OF BIRMINGHAM shall have the right, in its sole discretion, to control the defence of any claim, action or matter subject to indemnification by the User Member with counsel of its own choosing. The User Member shall fully cooperate with IMAGES OF BIRMINGHAM in the defence of any such claim, action or matter. This indemnity will survive the termination of this Agreement.
8. Limitations and Disclaimers
This Section 8 is subject to the limited warranty provided in Section 9 below, and shall not derogate from any of the provisions contained in such Section 9.
THE USER MEMBER AGREES THAT NEITHER IMAGES OF BIRMINGHAM NOR ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, MEMBERS, OWNERS, AGENTS, REPRESENTATIVES, LICENSORS AND (SUB)LICENSEES (OTHER THAN YOURSELF, AS APPLICABLE), SHALL BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INCIDENTAL, INDIRECT OR CONSEQUENTIAL, ARISING FROM ANY USE OR NON-USE OF THE CONTENT, EVEN IF SUCH PARTIES HAVE BEEN ADVISED, OR ADVISED OF THE POSSIBILITY, OF SUCH DAMAGES.
THE CONTENT IS PROVIDED "AS IS" AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. IMAGES OF BIRMINGHAM DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE QUALITY OF SUCH CONTENT BE DEFECTIVE YOU (AND NOT ANY OF THE INDEMNITEES) ASSUME THE ENTIRE RISK AND COST OF ALL CORRECTIONS. NOTWITHSTANDING ANY OTHER TERM HEREIN, IMAGES OF BIRMINGHAM MAKES NO WARRANTIES, NOR SHALL IMAGES OF BIRMINGHAM BE LIABLE, FOR ANY CLAIMS RELATED TO OR ARISING FROM YOUR USE OF CONTENT WHICH: (I) HAS BEEN MODIFIED BY YOU, (II) HAS BEEN COMBINED BY YOU WITH OTHER CONTENT, PRODUCTS, TEXT, CONTENT OR MATERIALS.
Without limiting the foregoing, the User Member acknowledges that: (i) IMAGES OF BIRMINGHAM generally does not have releases for the trademarks, logos or other intellectual property of other parties that may be depicted in some Content. The procuring of such releases is the responsibility of the User Member; and (ii) IMAGES OF BIRMINGHAM generally does not have releases from property owners, manufacturers or designers of commercial products such as (without limitation) automobiles, aircraft, packaged products, designer clothing, architecture, buildings, etc. that are depicted in some Content as it is generally not possible for any stock image library or artist to get blanket releases for such products. The procuring of such releases, which may sometimes be obtained on a case-by-case basis, is the responsibility of the User Member. Similarly, unless it is shown that model releases are available to accompany an image depicting a person, then it should be assumed that one is not available. (iii) All images of Network Rail property are for editorial usage only. It is the responsibility of the customer to ensure no images are used without clearance from Network Rail.
9. Limited Warranty
IMAGES OF BIRMINGHAM nor any other Indemnitee shall have any liability for, and IMAGES OF BIRMINGHAM’s obligations shall not apply to: (i) any damages, liabilities or expenses incurred by the User Member prior to its notification of the Claim to IMAGES OF BIRMINGHAM; and/or (ii) any Claim based on or arising out of: (1) the modification by the User Member of the Content; (2) the combination of the Content with any other work(s); and/or (3) the context in which the Content has been used by the User Member.
(a) EXCEPT FOR ANY LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED, THE INDEMNITEES WILL NOT BE LIABLE TO YOU OR ANY OTHER THIRD PARTY CLAIMING THROUGH YOU FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, STATUTORY OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR RELATING TO THIS AGREEMENT AND/OR YOUR USE OR INABILITY TO USE THE SITE OR THE CONTENT, WHETHER FRAMED AS A BREACH OF WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, IN TORT, CONTRACT, OR OTHERWISE. IN NO EVENT WILL THE INDEMNITIES' TOTAL MAXIMUM AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU ARISING FROM THIS AGREEMENT OR THE USE OF ANY CONTENT LICENSED HEREUNDER, EXCEED ONE THOUSAND POUNDS (£1,000.00) REGARDLESS OF THE NUMBER OR TYPE OF CLAIMS AND REGARDLESS OF THE NUMBER OF TIMES THAT YOU LICENSE THE SAME CONTENT FROM IMAGES OF BIRMINGHAM. THE FOREGOING EXCLUSIONS AND LIMITATIONS ARE APPLICABLE NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF THE INDEMNITEES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
(b) The foregoing states the entire liability and obligation of IMAGES OF BIRMINGHAM and the other Indemnitees, and the sole and exclusive remedy of the User Member.
(c) IMAGES OF BIRMINGHAM is relying on the representations and warranties made by Artist Members regarding the Content and their compliance with IMAGES OF BIRMINGHAM’s requirements, and IMAGES OF BIRMINGHAM does not have the right or ability to control the Content for purposes of the Digital Millennium Copyright Act or any claim of liability made by any third party against IMAGES OF BIRMINGHAM. IMAGES OF BIRMINGHAM does not act as agent for Artist Members who license Content or User Members who use the Content, and does not guarantee the quality, title, or legality of the Content, or the truth or accuracy of listings associated with the Content. Accordingly, except with respect to claims arising from the breach by IMAGES OF BIRMINGHAM of the warranties set forth in subsection (a) above, you hereby irrevocably and unconditionally release and waive any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, that you may have or assert against IMAGES OF BIRMINGHAM relating to or arising out of the purchase of a license to or the use of the Content.
10. Term and Termination
This Agreement shall continue in perpetuity unless terminated in accordance with this Section 10. IMAGES OF BIRMINGHAM at any time may terminate this Agreement with respect to any Content in the event of any breach by the User Member of any of his or her representations, warranties or obligations under this Agreement. The User Member may at any time terminate this Agreement. Each of IMAGES OF BIRMINGHAM and the User Member shall notify the other in the event it, he or she terminates this Agreement. IMAGES OF BIRMINGHAM shall also have the right, in its sole discretion, to deny the downloading of any Content from the Site. Upon termination of a license for any particular Content, the User Member shall immediately cease using such Content, destroy, or upon the request of IMAGES OF BIRMINGHAM return the Content to IMAGES OF BIRMINGHAM, delete or remove the Content and all derivative works and related materials (if any), in his or her possession or control and shall ensure that its clients and customers do likewise. Termination of this Agreement shall not relieve the User Member from any payment obligations that may have arisen prior to such termination. Further, the termination of this Agreement shall operate without prejudice to IMAGES OF BIRMINGHAM's rights, defences and limitations of liability provided under this Agreement, which rights, defences and limitations of liability shall survive termination of this Agreement.
By downloading and using the Content, the User Member acknowledges and agrees that this Agreement and all matters as to his or her access and use of the Site and/or the Content shall be construed and governed by the laws of England. All actions and disputes arising from or relating to this Agreement and all matters as to your access and use of the Site and/or the Content or other materials shall be heard and decided exclusively before the courts located within England and you irrevocably attorn and submit to the exclusive jurisdiction of the courts of England and waive any right you might otherwise have to claim lack of personal jurisdiction or inconvenience of forum.
The relationship between IMAGES OF BIRMINGHAM and the User Member under this Agreement is that of independent contractors. For clarification purposes, the parties are not joint venturers, partners, principal and agent, or employer and employee. Neither party shall have the power to bind or obligate the other in any manner. The User Member agrees that he or she shall be responsible for all use, sales, value-added and similar taxes and duties imposed by any governing authority in any jurisdiction in connection with your access or use of the Site.
No action or non-action of IMAGES OF BIRMINGHAM to exercise any power, right, privilege or remedy under this Agreement shall be construed as a waiver or amendment of this Agreement or preclude any other or further exercise of any such power, right, privilege or remedy.
This Agreement shall inure to the benefit of, and be binding upon, IMAGES OF BIRMINGHAM and you, and its and your respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer upon any person or entity, other than IMAGES OF BIRMINGHAM and you, and its and your respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement. IMAGES OF BIRMINGHAM shall have the right, in its sole discretion, to assign any or all of its rights or obligations under this Agreement. You shall have no right to assign any of your rights or obligations under this Agreement.
Whenever the context so requires, the singular number shall include the plural and vice versa, and the masculine, feminine and neutral genders shall include each other. This Agreement shall be construed neither against nor in favour of any party, but rather in accordance with the fair meaning of the language hereof. The invalidity or unenforceability of any part of this Agreement shall not affect the validity or enforceability of the balance hereof. The headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.