Image Creator TermsIMAGE CREATOR CONTRACT
1 Commencement of this contract
1.1 This Contract starts on the earlier of the day when we accept your registration for the services we have agreed to provide to you ("Service") or when we provide the Service to you.
2.1 Assignment. Your obligations hereunder are personal and may not be assigned or sub-contracted without Theimagefile's prior written consent, not unreasonably withheld if assigned to a bona-fide legal entity organised and acting solely on your or your heir's behalf. Theimagefile may freely assign its rights and obligations under this Agreement to any affiliate, or to any other person as part of a corporate reorganisation, consolidation, merger, or sale. This Agreement shall be binding upon and shall inure to the benefit of the parties' heirs, executors, administrators, successors, and permitted assigns.
2.2 Independent business. You operate an independent business apart from Theimagefile. Nothing in this Agreement creates a partnership, employer-employee relationship, or a joint venture between the parties. You are solely responsible for obtaining and maintaining all applicable business licenses and insurance, and for timely payment of all income, payroll, sales (VAT) and employment-related taxes, including without limitation all unemployment, workers compensation, income tax withholding, social security, and any other taxes or public charges of any nature whatsoever.
3 Provision of the Service
3.1 In performing our obligations under this Contract we will exercise the reasonable care and skill of a competent application service provider (ASP).
3.2 We cannot guarantee that the Service will never be faulty but we will correct reported faults as soon as we reasonably can. If a fault occurs you should report the fault by telephone, email or in writing to the Helpdesk.
3.3 We agree to provide you with the Service on the terms and conditions of this Contract, which sets out the entire agreement between you and us for the provision of the Service. We may accept instructions from another person who we reasonably believe is acting with your authority or knowledge.
3.4 We will use reasonable efforts to make the Service available 24 hours per day, 7 days a week but from time to time faults may occur which affect this level of Service availability. We may temporarily suspend the Service because of an emergency or for operational reasons, maintenance or improvements, but before doing so will give you as much notice as is reasonably practicable. We will restore the Service as soon as reasonably practicable after temporary suspension.
3.5 We may, from time to time, vary the technical specification of the Service or alter any part of the Service. We will give you as much notice as we reasonably can of any such variations that affect your use of the Service.
3.6 Helpdesk Call Monitoring. We may occasionally monitor and record calls made to or by us relating to the Helpdesk. We do this for training purposes and to improve the quality of our customer services.
3.7 The Service may comprise software, services, technical information, training materials, invoice and report generation or other technical data which, because of their origin or otherwise are subject to the United States of America export control regulations or the laws or regulations of another country. In such cases, provision of the Service will be conditional on obtaining and maintaining all necessary consents. You agree to comply with any such laws and regulations of any country that are applicable to your use of the Service.
4.1 Should you choose to use Theimagefile payment systems, we will transfer to you funds taken on your behalf for images, prints and products or licences of your work which you have sold to your customers or we have purchased from you, on request after cleared funds are received from our bankers in respect of the sale of such items. For stock imagery this is generally 6 weeks (45) days from the purchase date. Payments shall be made and calculated in GBP unless otherwise specified. We will pay you the price we receive from your customers and invoice you for our commission. Prints and Product sales from Events and Galleries can be paid directly to your direct payment gateway. Theimagefile does not charge commission for sales using direct payments.
5.1 You agree to pay all charges ("Charges") for the Service as specified in the 'My Monthly Bill' Link found in the Profile section on your control panel.
5.2 Liability for Charges will start on the day we first make the Service available to you only if you choose to continue after your trial. You may cancel your service at any time online within your account Profile section if you do not wish to continue with the service, then you will not be liable for any charges.
5.3 All Charges for the Service are exclusive of Value Added Tax, which you agree to pay in addition, where applicable.
5.4 You authorise us to charge to your chosen account all Charges for the Service as specified in the 'My Monthly Bill' Link found in the Profile section on your control panel.
6.1 In order to access the Service you will be issued with a unique password and user name. You will also be able to make your images available to your customers via unique passwords and user names. You are responsible for the security and proper use of all passwords relating to the Service and must take all necessary steps to ensure that all passwords are kept confidential, secure and are used properly.
6.2 You must inform us immediately if you have any reason to believe that any password or user name has become known to someone not authorised to use it or if any password or user name is being or is likely to be used in an unauthorised way.
6.3 If we have reason to believe that there is likely to be a breach of security or misuse of the Service:
a) we may change your password or user name and notify you accordingly; and/or
b) suspend your user name and password access to the Service.
6.4 If you forget your password a new one can be requested from the system and this will be emailed to your registered email address.
6.5 You agree to update the system or notify us immediately of any changes to the information you give to us during your registration process or available from the ‘My Profile’ link, including any changes to your account details.
6.6 You confirm and warrant that all the information supplied by you when you register for the Service or which is subsequently supplied to us is true, complete and accurate in all respects.
7 Use of the Service
7.1 The Service may not be accessed or used more than once by any given user at any given time.
7.2 You are responsible for the creation, rights-clearance, maintenance and design of any information, material, images, music, or any other content you provide in connection with the Service ("your Information"). Also, we are under no obligation to enforce or defend your intellectual property. We may however in our absolute discretion assist you to do so, or take action ourselves. In such an event we are entitled to our reasonable costs in so doing.
7.3 You must ensure that your Information does not include any information or material, any part of which or use of which would be a criminal offence or in any way unlawful. In particular, you must ensure that all necessary licenses and consents (including those from owners of copyrights or performing rights, or any other intellectual property rights, moral rights waivers, and model or other releases and parental permissions (where applicable)) have been obtained including in order to permit us to sell and sublicense your Images on your behalf or allow you to sell prints, products, licenses or downloads of your images. Where you upload music to the system, you must ensure you have cleared all rights to the music so that we may lawfully make it available through the Service on your behalf - this is your responsibility, not ours.
7.4 You must ensure that you comply with all consumer and other legislation, instructions or guidelines issued by regulatory authorities, relevant licenses and any other codes of practice which relate to the provision of your Information and which apply to you.
7.5 You must not use the Service:
a) fraudulently or in connection with a criminal offence;
b) to send, knowingly receive, upload, download, use or re-use any material which is offensive, abusive, indecent, defamatory, obscene or menacing, or in breach of copyright, confidence, privacy or any other rights;
c) to cause annoyance, inconvenience or needless anxiety;
d) in an unlawful manner, in contravention of any applicable legislation or licence as may be amended by us from time to time and which you are strongly advised to read; or
e) in any way that does not comply with any instructions that we have given to you.
7.6 If anyone other than you uses the Service with or without your knowledge or approval in contravention of any of paragraphs above we can treat such contravention as a breach by you of this Contract.
7.7 You must tell us immediately if any third party makes or threatens to make any claim or issue legal proceedings against you relating to your use of the Service and you will, at our request, immediately stop the act or acts complained of. If we ask you to, you must confirm the details of the claim(s) in writing.
7.8 You must ensure that your contact details e.g. email address are included in a clear and legible form on all messages sent from the Service, for receipt of any enquiries or complaints regarding your Information or any other material. We reserve the right to disclose to any person with an enquiry or complaint your contact details if such person cannot readily locate these details.
7.9 You agree to comply with all applicable laws (including without limitation any consumer protection and distance-selling laws) which may apply to any goods and services supplied by you to your customers or other Users using the Service.
7.10 Where it is your responsibility to do so you undertake to ship any goods or provide any services to Users in conformity with the order and of satisfactory quality as soon as reasonably practicable. In any event where such items have not been supplied or provided within 14 days of any order placed on you through the Service we reserve the right to do so on your behalf (but with no liability to you in so doing) and (without prejudice to any other right or remedy) you will pay our direct costs and administrative costs in doing so.
8.1 You represent, warrant and undertake to Theimagefile that:-
8.2 You are the sole owner of each uploaded image or file and its copyright and all other intellectual property rights and have the right to grant the licenses hereunder and provide the waivers and consents referred to in this Contract.
8.3 Each uploaded image or files are original and do not infringe any legal rights (whether statutory copyright, other intellectual property rights, common law rights or otherwise) and do not defame any third party.
8.4 You have the right to enter into this Contract and perform your obligations under this Contract and to grant licences in respect of your intellectual property as contemplated under this Contract.
8.5 Keyword information that you submit for the uploaded image or files is accurate and complete.
8.6 Theimagefile is granted the right to copy all images uploaded solely for display on the web site and backup purposes. Theimagefile is further granted the right to copy each uploaded image or files as provided to the Stock Area only and to grant your customers or our Users or facilitate for you to grant your customers, by way of sublicense the Rights (as defined in 9 below) to your benefit, without obtaining any further consents or permissions from you or the payment of additional fees to third parties.
8.7 You agree to indemnify, save, and hold Theimagefile and its successors, officers, directors, employees, licensees, affiliates and agents, ("Theimagefile Parties") and any Users harmless from any and all claims, demands, losses, or damages (including reasonable legal fees and expenses) arising out of a breach of any of the representations, warranties, undertakings, responsibilities and/or obligations set out in this Contract.
Theimagefile is authorised by you to grant Users or facilitate you to grant Users the irrevocable right to use the image in question on the license terms specified in the licence agreement generated at the time of purchase. The following definitions and additional terms shall also apply to the licence granted.
Royalty Free (RF) Licence
The User is granted the non-exclusive and non-assignable right to use the image without further payment for any lawful purpose for an indefinite period. Use includes reproduction, making the image available on the Internet and any other commercial or non-commercial use worldwide. As specified on the Royalty Free Licence Agreement.
Exclusive Royalty Free (ERF) Licence
The User is granted the exclusive and non-assignable right to use the image without further payment for any lawful purpose for an indefinite period. Use includes reproduction, making the image available on the Internet and any other commercial or non-commercial use worldwide. As specified on the Exclusive Royalty Free Licence Agreement. Only you know if you have previously sold an image and the existence or availability of any sister images (Images substantially like other images and probably but not always, taken at the same time and of the same subject matter) you must ensure you have cleared these issues with the image buyer so that we may lawfully make it available through the Service on your behalf - this is your responsibility, not ours.
Rights Managed (RM) Licence
This is where a licence is granted for a specified purpose, territory and duration as negotiated and agreed by you the photographer and specified on the Rights Managed licence agreement.
Where you have informed us that you have obtained the applicable model releases, parental permissions and other consents from third parties to reproduce their image or copyright work ("Consents") for the images, we are entitled to represent to your customer or User that such clearances have been obtained.
NB. For the purposes of this Contract and any licences granted in respect of your images, the definition of "Consent" shall be deemed to include the following:
* the consent of the persons included in the image (and their parents or guardians) (this is typically by way of a "Model Release")
* the consent of the copyright owner of any copyright works (e.g. photos, art works, buildings) included in the image
* the consent of the owner of any property photographed
* the consent of the owner of any brands or trademarks depicted
10 Limitation of Liability
10.1 We have no liability in contract, tort or otherwise (including liability for negligence) for any loss that is not reasonably foreseeable, nor any loss (whether direct or indirect) of business revenue, profit, goodwill or savings you expected to make, wasted expenditure or data or any Information being lost or harmed.
10.2 You acknowledge that we have no control over the information which can be accessed by using the Service and that we do not examine the use to which you put the Service or the nature of the information you send or upload. We exclude all liability of any kind for the transmission or reception of such information of whatever nature.
10.3 We exclude all liability of any kind for your Information. However we reserve the right to remove any of your Information following notice to you, if we reasonably believe that there may be a breach of this Contract, the law or any third party rights.
10.4 We are not liable whether in contract, tort (including liability for negligence) or otherwise for the acts or omissions of other providers of telecommunication or Internet services or for faults in or failures of their networks and equipment.
10.5 In any event and subject to clause 10.6, our liability together with that of any of Theimagefile Parties shall never exceed in aggregate for all claims, loss or liability arising in any calendar year the total amount we have received from you (which amount shall include any commissions we have retained or been paid which relate to your Information) in the calendar year in question.
10.6 Nothing in this Contract shall exclude or limit a party's liability for death or personal injury caused by its negligence or for fraud. Clause 10.5 shall not limit our liability in respect of payments which fall due for payment under clause 4.1.
11.1 You shall maintain the confidentiality of any "confidential information" that Theimagefile may provide to you, and you shall not use or disclose the same without the prior written consent of Theimagefile. "Confidential information" means any information that is either designated as confidential by Theimagefile or that under the circumstances surrounding the disclosure ought in good faith be treated as confidential by you.
12 Credit Notices/Promotion
12.1 Theimagefile may use your name and Images to promote, advertise, and market Theimagefile's business to our mutual benefit. If you do not wish to have your images used please contact our customer support department for assistance.
13.1 This Contract may be terminated by either party by providing 30 days written notice with no termination earlier than the initial contract period (where applicable). Either party may terminate this Contract or the Service provided immediately by written notice to the other if:
a) The other party commits a material breach of this Contract which cannot be remedied or which (if remediable) is not remedied within 15 days of a written request to remedy the same).
b) The other party fails to pay any Charges when due;
c) The other party fails to pay its debts when they fall due, or is declared insolvent, or bankrupt, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrator, administrative receiver, manager, trustee, trustee in bankruptcy or similar officer is appointed over any of its assets; or
d) The bandwidth used for traffic to and from the web site is exceeded beyond Theimagefile's considered acceptable use and is deemed by Theimagefile to affect the performance of other business websites. Without prejudice to any other remedies it may have under these Terms and Conditions or in law, Theimagefile, in the event that the acceptable bandwidth is exceeded, may elect to charge you (the Client) an additional monthly fee.
13.2 You must pay the Charges for the Service up to the expiry of any termination notice. Notice given by you does not avoid any other liability for the Service already provided. Termination or expiry of this Contract shall be without prejudice to the accrued rights and obligations of the parties.
14.1 You acknowledge that Theimagefile is a registered trademark of theimagefile.com Ltd and that all rights in the mark are vested in the registered proprietor. No use of this trademark may be made by you without our prior written consent.
While you will be asked to provide certain information about yourself in connection with licensing reproduction rights and payment, we will only use this information in administration of our website, to resolve any disputes, and for the purposes of protecting our intellectual property or facilitating the protection of the intellectual property of our licensors or any content providers. By registering with us you agree that we may also send you by email or otherwise information about new products, services or other promotions from us or our affiliates or partners which may be of interest to you. If you do not wish to receive this information, please amend your account profile or contact us at firstname.lastname@example.org. Theimagefile.com Ltd is the data controller and is registered under the Data Protection Act 1998 - please contact email@example.com if you have any data protection queries.
IP Addresses and Cookies
We may collect information about your computer, including where available your IP address, operating system and browser type, for system administration.
For the same reason, we may obtain information about your general internet usage by using a cookie file which is stored on the hard drive of your computer. Cookies contain information that is transferred to your computer's hard drive. They help us to improve our site and to deliver a better and more personalised service. They enable us:
* To estimate our audience size and usage pattern.
* To store information about your preferences, and so allow us to customise our site according to your individual interests.
* To speed up your searches.
* To recognise you when you return to our site.
Where We Store Your Personal Data
16 Third Party Rights
16.1 Other than Theimagefile Parties, a person who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act. Only the written consent of Theimagefile is required to amend or vary this Contract.
17.1 You agree to fully cooperate with us and the User in relation to any disputes which may arise relating to your Information and its exploitation.
18 Governing Law and Jurisdiction
18.1 This Contract shall be governed by the laws of England without giving effect to any principles of conflicts of law. Any claim or proceeding arising under or otherwise concerning this agreement shall exclusively be brought in the English courts and you consent to personal jurisdiction. Should any clause of these Terms be found unenforceable, wherever possible this will not affect any other clause and each will remain in full force and effect.