Monday, July 1, 2013 by KeyImagery| 5357 Views
This Agreement governs the terms by which photographers, illustrators or other artists provide photographic, illustrations and other files (“Media”) to members of the KeyImagery community through the web site located at keyimagery.com (the “Site”). This Contributors Agreement is in addition to the Membership Agreement that all persons providing Media to or downloading Media from the Site have previously entered into. In the event of any inconsistency between this Agreement and the Membership Agreement, the terms of this Agreement shall govern.
Terms & Conditions
1. Background of Agreement
This is a legal agreement between any member intending to upload data or materials onto the Site (in this agreement referred to as “you” or the “Member”) and Catch22 (NZ) Ltd (“KeyImagery”) operator of the Site. The Member wishes to appoint KeyImagery as its non-exclusive agent to license and distribute Media (as defined below) produced by the Member on the terms and conditions set forth in this Agreement and KeyImagery's form of Media Licence Agreement, as such agreement may be amended from time to time or modified for certain clients consistent with the rights granted herein (the “Media Licence Agreement”). Upon accepting the terms of this Agreement, you may make Media available to KeyImagery by following the “Upload” procedures and policies identified on the relevant portion of the Site. Each upload of Media 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. 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 Member, you must follow the termination procedures set forth below under “Term and Termination”.
2. Provision of Media
The parties acknowledge that the Member may, from time to time, provide information, software, photographs, illustrations, audio files, video files, animations, flash files, data files, code snippets and other material to KeyImagery using the Upload procedures of the Site or such other procedures as the parties may mutually agree (collectively, “Media”). KeyImagery, in its sole discretion, may determine which of such Media is suitable for posting on the Site or other means of distribution, and only such Media as it deems suitable will be considered “Approved Media” 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 Media 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 Media outlined in the Site will be deemed to be a breach of this Agreement.
3. Grant of Authority
The Member hereby appoints KeyImagery as the Member's non-exclusive agent to license royalty-free Media to third parties within the jurisdictions of KeyImagery's business. For all Media, the Member grants KeyImagery the right to use, reproduce, distribute, redistribute, publish, republish, upload, post, transmit, crop, package, repackage, produce and sell prints or similar image products or publicly perform or display Media to prospective licensees through the Site or other venues which it may determine from time to time, and the right to grant perpetual, worldwide, non-exclusive and non-transferable licenses or sub-licenses to end-users in accordance with the terms of the Media Licence Agreement that the Member hereby acknowledges having reviewed and approved.
In addition to the foregoing grant KeyImagery may use Approved Media for its own business purposes relating to the promotion of the Site and its distribution programs, and expand the market for the licensing of Approved Media (including, without limitation, the use of the Approved Media and the Member's registered and unregistered trademarks relating to Media for marketing, sales and promotional efforts whether on the Site or through third parties). No compensation shall be due to the Member for use of Approved Media for such business purposes.
The Parties agree that all rights, including title and copyright, in and to the uploaded Approved Media will be retained by the Member, and no title or copyright is transferred or granted in any way to KeyImagery or any third party except as provided in this Agreement and the Media Licence Agreement. Except to its affiliated and associated companies or as specifically permitted in this Agreement, KeyImagery may not distribute Media to any third party for the purposes of resale or re-license, it being understood that nothing herein shall restrict KeyImagery from providing access to the Site or Approved Media to prospective buyers through an application program interface or other utility so long as all purchases are subject to the Media Licence Agreement.
4. Intellectual Property Matters
The Member acknowledges that KeyImagery prohibits any Media 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 Media, you are warranting that you own all proprietary rights, including copyright, in and to the Media. In addition, to the extent that the Media 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 the KeyImagery Model Release that will permit the uses for such Media contemplated in the Media Licence Agreement. You also warrant that where required by applicable law, you have also obtained a valid and binding release in substantially the same form as the KeyImagery Property Release relating to any identifiable property contained in the Media that might sensibly lead to the identity of or be required by the owner of such property to permit the uses under the Media Licence Agreement.
The Member agrees that neither KeyImagery 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 Media.
KeyImagery agrees to pay a portion of the fees collected in respect of Approved Media that is downloaded or otherwise purchased by end-users according to the Commission Schedule, as it may be modified from time to time (the “Commission Schedule”) and the licensing of Media recorded by KeyImagery. The parties acknowledge that the Commission Schedule may differentiate among various types of Media, such as still images, video footage or otherwise in accordance with its terms. The Commission Schedule is subject to change in the sole discretion of KeyImagery in the ordinary course of its business without notice by posting such changes on the Site. If at any time the Commission Schedule is not acceptable to the Member, you may refrain from providing additional Media or terminate this Agreement in accordance with its terms.
In response to a written request, KeyImagery will endeavour to make payment of fees in respect of purchased downloads of Approved Media on a monthly basis on or about the 20th day of the month following the purchase of Approved Media provided such fees aggregate a minimum of NZ$50, failing which fees owing will be retained until they exceed such minimum. In all cases, payment of fees to the Member 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 Media Licence Agreement; (iv) where purchases or licenses are by other than the credit system, fees payable to financial institutions for the processing of any credit card, debit card, e-cheque or alternative payment method; and (v) any amounts owing by the Member to KeyImagery under this Agreement or otherwise. Without limiting the generality of the foregoing, KeyImagery is entitled to set-off against any amount owing to Member, all amounts to which KeyImagery 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 Member under this Agreement.
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 KeyImagery is authorized to accept your Member Name and password as conclusive evidence that you wish to upload Media pursuant to this Agreement. KeyImagery shall have no liability or responsibility to monitor the provision of Media under your member name and password.
7. Managing Media
KeyImagery does not and cannot review all communications or Media uploaded to the Site and is not responsible for the Media, quality, or consequences of your uploading such communications or Media. Notwithstanding the foregoing, KeyImagery reserves the right to delete, move, refuse to accept or edit any communication or Media 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, and you hereby agree to forfeit any fees payable in respect of such Media to KeyImagery or as it may direct. KeyImagery shall have the right but not the obligation to correct any errors or omissions in any Media, as it may determine in its sole discretion. You acknowledge that any screening of Media performed by KeyImagery to determine Approved Media is done as a courtesy only.
NOTICE: You acknowledge that the Media you provide pursuant to this Agreement that becomes Approved Media may be purchased or licensed by members with the intention that such licensees will adhere to the terms of the Media License Agreement. KeyImagery 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 Media being used in a manner that is not contemplated in this Agreement or the Media Licence Agreement. You also agree that notwithstanding any rights you may have to pursue the licensees of such Media at law, KeyImagery 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 Approved Media. KeyImagery will use commercial efforts to assist in the protection of your intellectual property rights, at your request and expense.
8. Confidential Information
The Member 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 Media constitutes valuable, confidential, proprietary information of KeyImagery and its licensors, and agrees that during the term of this Agreement and thereafter it shall not, without the express written consent of KeyImagery, 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 KeyImagery, 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, identities or personal information of any kind pertaining to members, clients, methodologies, Site Media belonging to others and other intellectual property.
9. Representations and Warranties
The Member hereby represents and warrants as follows:
- The Member has the legal capacity and authority to enter into this Agreement, is the sole and exclusive owner of the Media, 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 Media or any other intellectual property or technology that would conflict with this Agreement;
- No portion of the Media as delivered to KeyImagery 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 Media 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 Media or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Media or the Site in any way;
- The Media 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 Media; and
- The Media delivered to KeyImagery hereunder represents original creations and expressions of subject matter, and no Media 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.
You agree to indemnify, defend and hold KeyImagery and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Media (collectively, the “KeyImagery 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 KeyImagery Party as a result of or in connection with:
- any use or alleged use of the Site or provision of Media under your Member Name by any person, whether or not authorised by you;
- or resulting from any communication made or Media uploaded under your Member Name;
- any breach by you of this Agreement; or
- any claim threatened or asserted against any KeyImagery Party to the extent such claim is based upon a Mediation that any of the Media used within the scope of this Agreement and the Media Licence Agreement infringes any copyrights, trade secrets, trademarks, right of privacy or publicity, or other intellectual property rights of any third party.
KeyImagery reserves the right, at your expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with KeyImagery's defence of such claim.
11. 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 KeyImagery using email@example.com or such other means of written notice acceptable to KeyImagery which enables confirmation of your identity and your intention to terminate. KeyImagery 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 record. If KeyImagery 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 breach of this Agreement.
In addition, KeyImagery may deem an account to be terminated and may off-set any fees or credits contained in such account against its costs of administration if there has been: (i) in the reasonable opinion of KeyImagery, any material misrepresentation made as to the capacity, identity or copyright ownership of Media or the Member provided hereunder; or (ii) no log-in or other activity in the account for 24 months despite reasonable commercial efforts to contact Member based on the information provided through the Site as part of the account profile of such Member.
12. Effect of Termination
Upon the termination of this Agreement, the grant of authority given to KeyImagery shall cease subject to the following conditions: (i) KeyImagery shall remove Approved Media from the Site within thirty (30) days of the termination of this Agreement; (ii) notwithstanding termination, KeyImagery shall have the right to continue licensing Approved Media until it is removed from the Site; and (iii) regardless of the expiration or termination of this Agreement, KeyImagery will continue, in accordance with this Agreement, to pay compensation due to the Member 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, KeyImagery will be entitled to retain all amounts owing to the Member 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 KeyImagery pursuant to this Agreement.
13. DISCLAIMER OF WARRANTIES
THE SITE, INCLUDING ANY MEDIA CONTAINED THEREIN, ARE PROVIDED BY KEYIMAGERY “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.
KEYIMAGERY DOES NOT REPRESENT OR WARRANT THAT THE SITE OR THE MEDIA WILL BE MADE AVAILABLE FOR SALE OR LICENSE OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE. KEYIMAGERY DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY MEDIA AVAILABLE FOR DOWNLOADING THROUGH THE SITE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
14. LIMITATION OF LIABILITY
YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE INCLUDING WITHOUT LIMITATION ANY OF THE MEDIA OR INFORMATION CONTAINED THEREIN. IN NO EVENT SHALL KEYIMAGERY 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 MEDIA OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF KEYIMAGERY 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, KEYIMAGERY'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 MEDIA IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED BY KEYIMAGERY FOR THE MEDIA THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED ONE HUNDRED ($100.00) NEW ZEALAND 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 KEYIMAGERY OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
15. Applicable law
The Site is controlled, operated and administered by KeyImagery from Hamilton, New Zealand. The Site can be accessed from all regions of New Zealand, as well as from other countries around the world. As each of these jurisdictions has laws that may differ from those of New Zealand, you acknowledge and agree that this Agreement will be governed under the laws of New Zealand (without reference to conflicts of laws principles). You hereby irrevocably submit to the exclusive jurisdiction of the Civil Claims Court (New Zealand) 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 KeyImagery 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 Hamilton, New Zealand, pursuant to the rules of the Civil Claims Court (New Zealand) in effect at the time arbitration is demanded.
If KeyImagery is obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, you agree to reimburse KeyImagery for its legal fees, costs and disbursements if KeyImagery is successful.
KeyImagery'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 KeyImagery's prior written consent. KeyImagery 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 KeyImagery posting amendments on the Upload portion of the Site. Continued provision of Media 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 Member and it will be incorporated by reference into this Agreement.
If you have concerns relating to this Agreement, please contact KeyImagery at firstname.lastname@example.org or via phone on +64 7 8389961.
18. Entire Agreement
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 KEYIMAGERY AGREEING TO PROVIDE A MEANS FOR THE SALE OR LICENSE OF YOUR APPROVED MEDIA, 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 KEYIMAGERY, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND KEYIMAGERY RELATING TO THE SUBJECT OF THIS AGREEMENT.