This Agreement does not effectuate any sale of the Work. Except as expressly granted in this Agreement, we and our licensor retain all rights, title and interest in and to the Work. No title or ownership interest in or to the Work is transferred to you by virtue of this Agreement.
2. License to the Work
2.1 Standard License. Subject to your compliance with the terms of this Agreement, we hereby grant you a non-exclusive, perpetual, worldwide, non-sublicensable, non-transferable license to use, reproduce, modify or display the Work, subject to the restrictions in Section 3. By way of example, you may use, display, or modify the Work in connection with the following:
- Business and commercial purposes;
- Educational uses;
- Personal uses;
- Websites or blogs;
- Print and digital media, such as books, e-books, newspapers, magazines and newsletters;
- Editorial purposes;
- Electronic publications;
- Multimedia presentations;
- Promotional posters, greeting cards and post cards;
- Digital and web-based advertising, including web-banners;
- Packaging, wrappers and labels;
- Promotional and decorative purposes;
- Display in an office, store, restaurant, shopping mall or other place of business;
- For use and display in both private and public spaces;
- Business cards, letterhead and stationary;
- Billboards and signage;
- Printed items;
- Computer programs and applications;
- Marketing materials, which may be delivered via post, email, fax, or otherwise, and/or which may be displayed at “point of sale” locations;
- Cover art for DVDs, CDs and books and ebooks;
- For use in trade show booths and at sales conferences;
- Movies, films, videos, television programs and theater;
- For incorporation into other works of authorship; and
- Any other permitted purpose, including the right to publically display, broadcast, stream and perform the same and including the right to modify the Work.
2.2 Extended License. In addition to the standard license, you may distribute the Work as incorporated onto any item of merchandise or other work of authorship. For clarification you, may use, reproduce, distribute or display the Work in connection with (a) design template applications intended for resale; (b) any goods or services intended for resale or distribution, including, without limitation, mugs, t-shirts, posters, greeting cards, posters or other merchandise, and any "print on demand" or tangible or electronic formats; (c) a PR campaign aimed at the promotion of goods or services to the medias. Furthermore, if you incorporate a Work into a promotional press release that is being released to the media, then you may distribute the stand-alone image file of such Work to the media in connection therewith, under the condition that the media may only publish such Work in connection with the publishing of such press release, and that the media may not use or disseminate Work in any other manner.
2.3 Employee and Contractor Use. You may transfer files containing the Work or permitted derivative works to employees or subcontractors, provided that such employees and subcontractors agree to abide by the restrictions of this Agreement and only use the Work on your behalf. The employees and subcontractors have no additional rights to use the Work.
2.3 Client Use. You may use the license granted under this Agreement for the benefit of one of your clients, provided that you must transfer all your license to your client and your client must comply with the terms of this Agreement and comply with all license and use restrictions. You are solely responsible and liable for any and all use of the Work by your client. You must purchase additional licenses for the same Work if you intend to use the same Work for the benefit of other client.
2.5 Digital Library. You may create a digital library, network configuration or similar arrangement to allow the Work to be viewed by employees and clients of your company.
3.1 General Restrictions. You must not misuse the Work. Except as expressly permitted in Section 2 above, you must not:
- sublicense, sell, assign, convey or transfer or attempt to transfer any of your rights under this Agreement;
- sell, license or distribute the Work or any modified Work as stand-alone or as part of an online database or any other database, or any derivative product containing the Work in such way that would allow a third party to use, download, extract or access the Image as a stand-alone file;
- share the Work with any other person or entity or post the Work online in a downloadable format, post the Work on an electronic bulletin board;
- download or store the Work on more than one computer at the same time, except that you may make a single backup copy to be stored on media separate from the single permitted computer;
- use, reproduce, distribute, perform, modify, or display the Work (including, without limitation, by itself or in combination with any other work of authorship) in any manner that is libelous or slanderous or otherwise defamatory, obscene or indecent;
- remove any copyright or proprietary notice or other information that may appear on, embedded in, or in connection with the Work in its original downloaded form, it being understood that you must include any and all such notices in any permitted backup copy of the Work;
- incorporate the Work into a logo, trademark, or service mark;
- take any action in connection with the Work that violates any applicable law;
- Use the Work in an editorial manner, without affixing the accompanying copyright notice; provided however that the copyright notice is not necessary if such Copyright Notice is not required under applicable law for use in a particular situation AND if it would not be customary to include such copyright notice in such particular situation;
- take any action in connection with the Work 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 Work and the rights of any person who, or any person whose property, appears in the Work;
- take any action in connection with the Work that would reasonably imply that the creator of the Work, or the persons or property appearing in the Work (if any), endorse any political, economic or other opinion-based movements or parties;
use the Work in a way that places any person in the photo in a bad light or depicts them in a way that they may find offensive - this includes, but is not limited to:
- the use of Works in pornography;
- tobacco ads;
- ads for adult entertainment clubs or similar venues, including escort or similar services;
- political endorsements;
- uses that are defamatory, or otherwise contain unlawful, offensive or immoral content.
3.2 Website Use. Notwithstanding anything to the contrary contained in this Agreement, with respect to using and displaying the Work on websites, you must take all reasonable actions to prevent website visitors from downloading or reusing the Work.
3.4 Additional Restrictions. The following additional restrictions apply:
- You may only distribute the Work as incorporated onto an item of merchandise if (i) the Work has been modified to the extent that the modification is not substantially similar to the original Work and can qualify as an original work of authorship or (ii) the primary value of the item of merchandise does not lie with the Work itself. For clarification, producing an unmodified Work on a poster is not permitted as the primary value would lie in the Work itself.
- You also may not use, include, or incorporate the Work in any electronic template or application (such as a web design or presentation template, or templates for electronic greeting cards or business cards).
- You may not cause or allow any Work to be reproduced more than 500,000 times in total. For example, a Work may not appear on more than 500,000 printed materials (flyers, advertisements, covers, packages, etc.) Likewise, the Work may not be incorporated in a television program, video, or other production if the audience is expected to be greater than 500,000 viewers, in total. This restriction will not apply to Works that are only displayed on a website or Social Media Site.
4. Payments and Pricing
You must pay us a license fee in accordance with our Standard pricing and payment policies; provided however that you may need to pay some or all of the fee to our subsidiary, MountainCode LDA Portugal, depending on where you reside or on other similar parameters.
5. Your Indemnification Obligations
You will indemnify us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising out of or related to the content that you provide us, your use of the Work or Website, or your modification to the Work (except as indemnified under Section 8 below), or your violation of these terms.
We have the right to control the defense of any claim, action or matter subject to indemnification by you with counsel of our own choosing. You will fully cooperate with us in the defense of any such claim, action or matter.
6. Limitations of Liability
6.1 Limitation. We are not liable to you or anyone else for any special, incidental, indirect, consequential, or punitive damages (even if we have been advised of the possibility of these damages), including those (a) resulting from loss of use, data, or profits, whether or not foreseeable, (b) based on any theory of liability, including breach of contract or warranty, negligence or other tortious action, or (c) arising from any other claim arising out of or in connection with your use of or access to the Services or Works. Nothing in these terms limits or excludes our liability for gross negligence or for our (or our employees’) intentional misconduct. Except with regard to our obligations under Section 8 below, our total maximum aggregate liability under this Agreement is limited to the amount we received from you for the Work giving rise to the liability.
6.2 Releases. We generally do not have releases for the trademarks, logos or other intellectual property of other parties that may be depicted in some Works. Furthermore, we generally do not have releases from property owners, manufacturers or designers of commercial products such as (without limitation) automobiles, aircraft, packaged products, designer clothing, etc. that are depicted in some Works. It is generally not possible for any stock image library or artist to get blanket releases for such products, but they can often be obtained on a case-by-case basis. You are responsible for procuring all such releases.
The limitations and exclusions in this section apply to the maximum extent permitted by law.
7. Our Indemnification Obligations
7.1 Our Duty to Indemnify. We will defend any third-party claim, action, legal proceeding made against a person or entity (collectively, "Claim") during the term of this Agreement to the extent the Claim alleges that your use of the Indemnified Work pursuant to these terms directly infringes the third party’s copyright, trademark, publicity rights or privacy rights ("Infringement Claim"). "Indemnified Work" means any Work that you have purchased and downloaded from the Website that has not been altered, except Work that (a) is part of our collection of free Works or (b) can otherwise be downloaded without payment of credits or monetary compensation. We will pay you the damages, losses, costs, expenses, or liabilities (collectively, “Losses”) directly attributable to an Infringement Claim and are either finally awarded by a court of competent jurisdiction against you or agreed to in a written settlement agreement signed by us.
7.2 Conditions to Indemnification. PhotoBTC will have no liability for any Infringement Claim:
- that arises from (i) any modification of the Indemnified Work; (ii) any combination of the Indemnified Work with any other works; (iii) any use of the Indemnified Work after we have removed the Indemnified Work from our Services or have instructed you to stop using the Indemnified Work; or (iv) the context in which you have used the Indemnified Work; or
- if you fail to (i) notify us in writing of the Infringement Claim promptly upon the earlier of learning of or receiving a notice of it, to the extent we are prejudiced by this failure; (ii) provide us with reasonable assistance requested by us for the defense or settlement of the Infringement Claim; (iii) provide us with the exclusive right to control and the authority to settle the Infringement Claim; or (iv) refrain from making admissions about the Infringement Claim without our prior written consent.
7.3 Limitation of Liability. Notwithstanding anything to the contrary contained in these terms or in any other agreement between you and us, our total maximum aggregate liability with respect to any Indemnified Work will in no event exceed US$1,000 per Indemnified Work, irrespective of the number of times the Indemnified Work is downloaded or licensed.
7.4 Sole and Exclusive Remedy. The foregoing states our entire liability and obligation, and your sole and exclusive remedy, with respect to any Indemnified Work or Infringement Claim.
We may terminate this Agreement or with respect to any Work upon notice to you in the event of your breach of the terms this Agreement. You may terminate this Agreement at any time upon notice to us. We may deny the downloading of any Work from the Website.
9. Effect of Termination
Upon our termination for cause of this Agreement or with respect to any particular Work, you must cease using the Work and destroy all copies of the Work, and all derivative works and related materials (if any), in your possession or control. At our request, you will certify in writing to such destruction of the Work, derivative works and related materials. Termination of this Agreement does not relieve you of any obligations to pay any outstanding fees. The provisions of Sections 1, 5, 6, 7, 8, 9, and 10 will survive the termination of this Agreement.
10.1 Governing Law. Your relationship is with PhotoBTC, a Portuguese company, and the Work and these terms are governed by the law of Portugal. You may have additional rights under the law. We do not seek to limit those rights to the extent prohibited by law.
10.2 Dispute Resolution. For any concern or dispute you may have, you agree to first try to resolve the dispute informally by contacting us. If a dispute is not resolved within 30 days of submission, we must resolve any claims relating to these terms, the Website, or the Work through final and binding arbitration, except that you may assert claims in small claims court if your claims qualify. The arbitration will be held in Lisbon, Portugal, or any other location we agree to. Judgment upon the award rendered may be entered and will be enforceable in any court of competent jurisdiction having jurisdiction over the parties.
10.3 No Class Actions. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action.
10.4 No Agency. The relationship between you and us under this Agreement is that of independent contractors. For clarification purposes, the parties are not joint ventures, partners, principal and agent, or employer and employee. Neither party shall have the power to bind or obligate the other in any manner.
10.5 Taxes. You are responsible for all use, sales, value-added and similar taxes and duties imposed by any governing authority in any jurisdiction in connection with the license granted to you under this Agreement. If you have purchased a membership from us, then at the beginning of each billing period, we will charge you the fee stated at the time of purchase plus applicable tax (such as, value added tax (unless the fees are stated inclusive of VAT), sales tax, use tax, or other tax or duty). If the applicable VAT rate, or other included tax or duty, changes during the one-year term, the tax-inclusive price will change accordingly. In that case, the service begins when we confirm your payment. Specific subscription terms for a particular Service are presented at the time of your purchase.
10.6 No Waiver. Our failure to enforce or exercise any of these terms is not a waiver of that section.
10.7 Assignment. We have the right, in our sole discretion, to assign any or all of its rights or obligations under this Agreement. You have no right to assign any of your rights or obligations under this Agreement and any such attempt will be void.
10.8 Severability. If a particular term is not enforceable, the unenforceability of that term will not affect any other terms.
10.9 Modification. We may modify this Agreement that apply to a Work to, for example, reflect changes to the law or changes to our services. You should look at the terms regularly. We’ll post notice of modifications to these terms on this page. By continuing to use or access the Website after the revisions come into effect, you agree to be bound by the revised terms.
10.10 English Version. The English version of this Agreement will be the version used when interpreting or construing these terms.