FotoAgent LICENSING TERMS & CONDITIONS

License Agreement for Rights-Managed (RM) Images

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND FotoAgent. PLEASE READ THIS AGREEMENT CAREFULLY. BY DOWNLOADING AND/OR USING ANY RIGHTS MANAGED IMAGE, ILLUSTRATION OR OTHER GRAPHIC MATERIAL (HEREINAFTER THE "RM GRAPHIC MATERIAL") YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT DO NOT DOWNLOAD OR USE ANY RM GRAPHIC MATERIAL CONTAINED IN THIS SITE.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER AND/OR PRINCIPAL, YOU HEREBY REPRESENT AND WARRANT THAT: I) YOU HAVE FULL AND EXPRESS AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER AND/OR PRINCIPAL; AND THAT: II) SUCH EMPLOYER AND/OR PRINCIPAL HAS AGREED TO BE BOUND BY THE TERMS HEREBY; III) THAT THE RM GRAPHIC MATERIAL AND ANY FINAL WORK INCLUDING THE RM GRAPHIC MATERIAL IS ONLY FOR THE BENEFIT OF EMPLOYER OR PRINCIPAL AND THAT YOU WILL NOT USE ANY RM GRAPHIC MATERIAL OBTAINED FROM FOTOAGENT FOR THE BENEFIT OF ANY OTHER PERSON OR ENTITY WITHOUT ENTERING INTO A SEPARATE LICENSE WITH FotoAgent; AND IV) YOU WILL COMPLY WITH ALL THE TERMS HEREOF AND SHALL BE JOINTLY AND SEVERALLY LIABLE FOR ANY BREACH OF THE TERMS OF THIS AGREEMENT BY YOUR PRINCIPAL AND/OR EMPLOYER.

ALL THE RM GRAPHIC MATERIALS ARE COPYRIGHTED AND ALL RIGHTS TO THE RM GRAPHIC MATERIAL ARE OWNED BY FotoAgent AND/OR ITS LICENSORS AND CONTENT PROVIDERS. FotoAgent RETAINS ALL RIGHTS NOT SPECIFICALLY GRANTED TO YOU BY THIS AGREEMENT.

YOUR RIGHT TO USE ANY RM GRAPHIC MATERIAL IS SUBJECT TO YOUR FULL PAYMENT OF THE LICENSE AND THE RESTRICTIONS SET FORTH IN THIS AGREEMENT.

I. Definitions

1.1 In this Agreement the following terms should have the following meanings:

1.1.1 Rights Managed Graphic Material (RM Graphic Material): means the graphic material of FotoAgent which may consist in still images, illustrations or other visual representation generated optically, electronically, digitally or by any other means and which use is subject to the terms of the present License agreement.

1.1.2 Invoice: means the computer generated or pre-printed invoice which includes without limitations the permitted scope of use of the RM Graphic Material selected and the corresponding price for the license of such RM Graphic Material.

1.1.3 Reproduction: means any form of copying or publication of the whole or part of any RM Graphic Material by any means whatsoever. Reproduction shall also include any distortion or manipulation of the whole or part of any RM Graphic Material.

II. Rights Granted

2.1 Conditioned upon your full payment of the license and your compliance with the terms of the Invoice and this Agreement (including all restrictions), FotoAgent grants You a non-exclusive (unless otherwise stated in the Invoice), non-sub-licensable, non-transferable right to reproduce the RM Graphic Material listed in the Invoice in accordance with the reproduction rights granted and specified in the Invoice.

2.2 The rights hereby granted to you are non-transferable which means that any work that you produce using an RM Graphic Material must be for your own use, or for the use of your direct employer or client, who must be the end-user of your work (as long as all relevant data pertaining to any such end-user is clearly stated in the Invoice for having been provided to FotoAgent prior to licensing). In any such event, You hereby agree to be jointly and severally liable for any breach of the terms hereof by your employer and/or client.

2.3 Unless otherwise specified on the Invoice, the license granted on the RM Graphic Material is strictly limited to the use, medium, period of time, print run, placement, size of image, territory and any other restrictions specified on the Invoice, which is incorporated into this agreement by this reference, and as incorporated together with this Agreement constitutes the full license granted to You.

2.4 Unless otherwise stated in the Invoice, all licenses on the RM Graphic Material are granted for a one time use, in a single publication, single size, single territory, in one single language, and for a term of one (1) year from the date the applicable Invoice is issued.

2.5 All rights not specifically granted to You are reserved. The license fee on the RM Graphic Material depends on the nature of the rights granted, therefore You undertake to obtain an additional license before undertaking any expanded use of any RM Graphic Material.

2.6 The following credit line is required for any editorial use of any RM Graphic Material "© Photographer's name/FotoAgent or "© FotoAgent if no other name is mentioned with the RM Graphic Material. For commercial uses, you shall include the credit described above when customary and appropriate.

III. Restrictions on Use

3.1 The RM Graphic Material may not be used for any pornographic, unlawful purpose or use or to defame any person or violate any person's right of privacy or publicity or to infringe upon any copyright, trade name, trademark or service mark of any person or entity. Advance written permission from FotoAgent is required for use of any RM Graphic Material for sensitive subjects, including without limitation, topics that may depict the subject matter of an RM Graphic Material in a negative or unfavorable light.

3.2 FotoAgent reserves the right not to license any RM Graphic Material for any reason whatsoever.

3.3 You may only use a single copy of the RM Graphic Material on a single computer. You may only download the RM Graphic Material onto one (1) computer hard drive or other computer medium and may not otherwise make, use or distribute copies of the RM Graphic Material for any purpose except as otherwise provided in the Invoice. Notwithstanding the foregoing, You shall be allowed to make one (1) backup copy for security purposes only.

3.4 Upon termination or expiration of the license, You shall cease any use of the RM Graphic Material and promptly erase or destroy any reproducible copies of the same.

IV. Unauthorized Uses and Indemnification

4.1 Any use of any RM Graphic Material beyond the scope of the license set forth on the Invoice or in a manner not expressly authorized by/or in breach of the present Agreement constitutes copyright infringement, entitling FotoAgent to exercise all rights and remedies available under all applicable laws.

4.2 You shall be responsible for any damages resulting from any such copyright infringement, including without limitation any claims by a third party and you hereby agree to indemnify and hold harmless FotoAgent and its licensors and content providers, against all claims (including without limitation, claims by third parties), liability, damages, costs and expenses, including reasonable legal fees and expenses, arising out of or related to any unauthorized use of any RM Graphic Material or any breach of any terms and conditions or restrictions of the present Agreement, (including any terms, conditions and restrictions included on the Invoice).

V. Releases and Third Party Rights

5.1 Unless FotoAgent expressly states otherwise in writing, and given that you and/or you client (the End-User) are the only parties apprised of the specific context in which the RM Graphic Material shall be used, you hereby acknowledge that the license granted by FotoAgent does not include a license to and FotoAgent makes no warranties or representations that it licenses any rights related to any person depicted in the RM Graphic Material nor FotoAgent can guarantee to be in possession (or the validity or effectiveness and scope if applicable) of the necessary authorizations from the persons depicted in the RM Graphic Material for the intended use of the Graphic Material. The same shall apply with regard to the authorizations that may be required for the use of names, brands, logos, entities or corporations which may also appear in the RM Graphic Material.

5.2. Also, unless otherwise agreed in writing, and, given that you and/or your client (the End-User) are the only parties privy to the specific context in which the RM Graphic Material shall be used, FotoAgent neither transfers nor guarantees that it possesses any exploitation rights to the designs and works of art (e.g. architectural works), that may appear reproduced in the RM Graphic Material. Therefore, when the license is granted to reproduce the RM Graphic Material, the reproduction being authorized pertains solely to the RM Graphic Material independently of any rights that may correspond to the copyright holders of the work appearing in said RM Graphic Material.

5.3. Unless otherwise agreed in writing, FotoAgent shall not undertake to obtain the authorizations referred to in previous paragraphs 5.1 and 5.2, whereby you and/or your client (the End-User) must be the ones responsible to obtain such authorizations, if necessary. Therefore, you and/or your client (the End-User) shall be solely responsible to third parties for the use of the RM Graphic Material, therefore holding FotoAgent absolutely save and harmless to that end.

5.4 FotoAgent shall not be held liable for any conflict that may arise as a result of any digital or analog manipulation of the RM Graphic Material, incorrect, improper or unauthorized use of the RM Graphic Material, such as, for instance, those that serve to illustrate texts or contexts (of any kind, including advertising and commercial ones) that may harm the rights or interests of persons, companies, corporations, etc, and, in particular, when they may be considered slanderous, defamatory, or infringing on third party rights, or, in otherwise illegal.

VI. Payment

6.1 You are responsible for ensuring that all the information appearing in the Invoice is true, accurate and complete.

VII. Credits

7.1 No credits are issued.  Once your purchase is made we can not offer a refund. The reason for this policy is because we offer full access to our entire digital collection of photos and, as such, there is no way for our products to be returned. On a rare occasion we will make exceptions on a case by case basis.

 VIII. Warranty and Limitation of Liability

8.1 FotoAgent warrants that: i) it has all necessary rights and authority to enter into and perform this Agreement; ii) any digital copy of the RM Graphic Material to be free from defects in material and workmanship for ninety (90) days from delivery. Your sole and exclusive remedy for a breach of this warranty is the replacement of the defective digital copy of the RM Graphic Material. EXCEPT AS PROVIDED IN THIS SECTION, FotoAgent MAKES NO WARRANTIES (EXPRESS OR IMPLIED) WITH RESPECT TO THE RM GRAPHIC MATERIAL. AS STATED IN SECTION V ABOVE, FotoAgent GRANTS NO RIGHTS AND MAKES NO WARRANTIES WITH REGARDS TO THE USE OF NAMES, TRADEMARKS, TRADE DRESS, DESIGNS OR WORKS OF ART OR ARCHITECTURE DEPICTED IN ANY IMAGE, AND YOU MUST SATISFY YOURSELF THAT ALL THE NECESSARY RIGHTS AND CONSENTS REGARDING ANY OF THE ABOVE, AS MAY BE REQUIRED FOR THE INTENDED USE HAVE BEEN OBTAINED. WHILE FotoAgent MAKES EFFORTS TO USE ACCURATE CAPTION INFORMATION, FotoAgent DOES NOT WARRANT THAT SUCH INFORMATION IS ACCURATE. FotoAgent MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED REGARDING ANY RM GRAPHIC MATERIAL INCLUDING, WITHOUT LIMITATION, THAT THE RM GRAPHIC MATERIAL ARE ERROR FREE, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

8.2 EXCEPT FOR ANY LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED, NEITHER FotoAgent NOR ANY OF FotoAgent'S SUBSIDIARY, SUCCESSOR, PARENT, AFFILIATE, PARTNER, OFFICER, DIRECTOR, EMPLOYEE, CONTENT PROVIDER, LICENSOR, DISTRIBUTOR OR AGENT SHALL BE LIABLE FOR ANY DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF THE USE OR INABILITY TO USE THE RM GRAPHIC MATERIAL OR OTHERWISE,

8.3 THE REPRESENTATIONS AND WARRANTIES MADE BY FotoAgent IN THIS AGREEMENT APPLY ONLY TO THE RM GRAPHIC MATERIAL AS DELIVERED BY FotoAgent AND WILL BE INVALID IF THE RM GRAPHIC MATERIAL IS USED IN ANY MANNER NOT SPECIFICALLY AUTHORIZED IN THIS AGREEMENT.

IX. Data Protection

9.1 FotoAgent hereby informs You that any personal data that you provide to FotoAgent for the purposes of servicing you, which may include, but not limited to, personal data of your representative or any other individual which may be required to fulfill this Agreement.

9.2 This information will be processed and controlled by FotoAgent and used for internal purposes only and more particularly to fulfill licensing transactions, maintain your account and send you marketing communications to inform you of new products or services or for promotional purposes to send you updates on our latest promotions and offers. We may also use certain account information provided to us by authorized users to conduct credit inquiries.

9.3 By making this information available to FotoAgent you are agreeing to allow us to share this information with FotoAgent's partners, subsidiaries, affiliates, any third party content provider, necessary payment processors or third parties which services are required to carry out your order. We also reserve the right to disclose your personal information if required to do so by law or in order to comply with any legal process.

X. Severability

10.1 Should any provision of this Agreement be found invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected and shall remain in full force and effect. Such provisions shall be revised only to the extent necessary to make them enforceable.

XI. Entire Agreement, Waiver

11.1 This Agreement contains all the terms of the license agreement for the RM Graphic Material and no terms or conditions may be added or deleted unless made in writing and signed by an authorized representative of both parties. No action of FotoAgent , other than an express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of FotoAgent 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 FotoAgent 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 by FotoAgent on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.

XII. Law and Venue

12.1 This Agreement, and all matters collateral thereto, shall be governed by and construed in accordance with the laws of Florida, excluding the application of its conflicts of law rules, and any dispute arising hereunder shall be litigated solely in a court of competent jurisdiction in Broward County, Florida. Notwithstanding the foregoing, FotoAgent 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 licensee in the event that, in the opinion of FotoAgent, such action is necessary or desirable.

12.2 This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed.

This agreement is made by and between FotoAgent (otherwise listed herein as You or Your) who creates an account for the right to access, acquire, and use Materials from this website.  FotoAgent hereby represents that it owns all rights and copyrights to all materials on our website, and all rights and copyrights to said website and materials shall remain the exclusive property, right and control of and under FotoAgent and  ?Materials? from our website will constitute and be defined as any photo, image, design, or layout represented on the FotoAgent website.  By downloading any Materials from FotoAgent you are asserting your declaration that you have read, understood, and agreed to all terms and conditions listed in this Agreement, and otherwise identified on our website. 

Terms of Use and Conditions as Defined Below:

A. User?s Rights to Materials from FotoAgent.  You agree to access, acquire, and use our Materials as follows:
 

1. These Terms and Conditions constitute a legal Agreement between You and FotoAgent.
   
   
2. FotoAgent.com grants You a nonexclusive, nontransferable license to download, use, modify, publish, and display our Materials according to the defined Terms and Conditions of this Agreement.
   
   
3. You may access, acquire, and use the materials downloaded from FotoAgent.com subject to these Terms and Conditions in the following manner:

• a. In the development and creation of your business presence and entity.
• b. As part of an offline presentation, meaning in menus, magazines, in books, on book covers as par of the cover?s design, and newspapers.
• c. In the development and creation of marketing, promotional, or advertising materials, including newsletters, mailers, print ads, packaging, and fliers.
• d. As part of office presentation and layout for your business, in other words, for d?cor in an office, lobby, retail store, or public area.
• e. In a PowerPoint presentation, however, use of our Materials in this medium must include an explicit statement in an easily identifiable location in this presentation noting that ?Some images contained in this presentation are the copyrighted property of FotoAgent.  As such, these images are being used under a license from said entities, and may not be copied or downloaded without explicit permission from FotoAgent.?
  
• f. As part of a design element of a website, video, film, television broadcast, CD-Rom cover, or video game.  However, you may not, under any circumstances use the materials from our website in a Website template or any template or design sold individually or as part of an archive or catalog collection, or an automated shopping system, under any circumstances. You MAY however use our photos in client websites that are NOT distributed through an archive or automatic system.
   

B. User?s Restrictions on the Use of FotoAgent Materials.  You agree not to access, acquire, or use our Materials in any of the following manners:

1. You may not at any time share, sell, give, or allow anyone to use your username/password, nor access your account for any reason.
   
   
2. You may not distribute, share, sell, or give away any of our Materials at any time for any reason whatsoever.
   
   
3. You may not distribute our Materials electronically or in hard copy, except as specifically outlined in the ?User?s Rights to Materials from FotoAgent? section of this Agreement. 
   
   
4. You may not use any of the Materials downloaded or obtained from our site in a Website template or any template or design sold individually or as part of an archive or catalog collection, or an automated shopping system, under any circumstances. You MAY however use our photos in client websites that are NOT distributed through an archive or automatic system.
   
   
5. You may not allow or authorize any third party to use the Materials for any purpose at any time or resell, sublicense, or otherwise make available the Materials for use or distribution separately or detached from a product or Web page.
   
   
6. You may not use any download software, internet accelerators, or other similar software or automated programs to access or download any materials from our website at any time.
   
7. You may not under any circumstances use Materials in connection with any illegal, obscene, immoral, or pornographic material.
    

C. You understand and agree that FotoAgent may, in its sole discretion:

1. Monitor your download activity from FotoAgent as often as FotoAgent determines under its sole discretion for any reason and for any violation of this Agreement.
   
   
2. Disable any account that engages in what FotoAgent determines to be a large number of photos on any given day, as such activity indicates possible EULA violations or abuse of a username/password and account.
   
   
3. Limit downloads to a fixed amount of downloads per 24 hour period, per user, as FotoAgent sees fit on an individual basis, and to ensure the quality of our service is retained to be delivered to all.
   
   
4. Investigate any abuse of your username and password in connection with the FotoAgent website or in connection with this Agreement.
   
   
5. Take the appropriate action to investigate all potential abuse, which can lead to contacting the individual involved with the violations, account suspension, account termination, or other actions deemed necessary depending on the nature and severity of the violations, if we are unable to confirm the validity of the activity.
   
   
6. Terminate your account immediately for any violation of this agreement, or the Terms and Conditions as defined in this Agreement and elsewhere on FotoAgent, without notice.  If your account is terminated for any violation of this Agreement and/or abuse of your username or password, and/or our Materials, you lose all rights to FotoAgent Materials, and you must IMMEDIATELY delete any and all Materials obtained prior to this termination, and forfeit all fees paid.
    

D. You understand that Materials are copyrighted and owned by FotoAgent only, and any unauthorized use of any of these Materials by you may be an infringement upon said copyright. 
 
E. FotoAgent and all Materials are made available to you ?AS IS,? ?AS AVAILABLE,? and ?WITH ALL FAULTS.?  FotoAgent its employees, directors, and officers and anyone else associated with FotoAgent makes no representation or warranty, express or implied, including without limitation warranties of merchantability, fitness for a particular purpose, or non-infringement.  FotoAgent further makes no representation or warranty that your usage of FotoAgent will be uninterrupted, error free of computer viruses, or other damaging materials.  When you login to your account, and access FotoAgent, you do so at your own risk.
 
F. FotoAgent, its employees, directors, and officers, or anyone else associated with FotoAgent shall not be liable for any indirect, special, consequential, economic damages including but not limited to loss of revenue or profits, arising out of the use, or inability to use, the Materials.  FotoAgent, its employees, or related parties, will in no event be liable for any damages to exceed the amount paid by you for accessing or using FotoAgent, and for accessing, acquiring, and/or using Materials from FotoAgent.
 
G. AGE OF MAJORITY.  You warrant and attest that you are of the age of majority, and that your signature shall serve as confirmation and attestation to this statement.  You further agree that you fully understand the contents, meaning and impact of this agreement.  You will not use these Materials in any way that is not permitted in this Agreement or in violation of this Agreement.  Your use of these Materials will not violate any applicable law or regulation of any country, state, or other governmental entity.  You further attest that the information you provide to FotoAgent is accurate and true, including without limitation all credit card information
 
H. You agree to fully, indemnify, and hold harmless FotoAgent, its employees, directors, officers, and any other entity associated with FotoAgent, and each  of its successors, licensees, and assigns free and harmless from any and all claims, liabilities, costs, losses, damages, expenses, including attorneys? fees and expenses, arising in connection with Your use of the Materials and this website or of any breach or alleged breach of any representation, warranty, or other promise made by You in this Agreement.
 
I. ENTIRE AGREEMENT. You acknowledge that this agreement expresses the parties entire understanding and agreement, and that there have been no warranties, representations, covenants, or understandings made by either party to the other except as expressly set forth in this agreement.  Any modifications to this agreement shall be made in writing and agreed to by both parties in writing.  The parties further acknowledge that this agreement supersedes, terminates, and otherwise renders null and void any and all prior or contemporaneous agreements or contracts, whether written or oral, entered into between the Buyer and Seller with respect to the matters expressly set forth in this agreement.
 
J. You agree, attest, and reaffirm your agreement to the terms listed herein and to conduct your transaction electronically.