Rights Managed Bundle End User License Agreement (EULA)
1. Rights Managed Bundle End User License Agreement (EULA)
LEARNING PICTURES RIGHTS MANAGED BUNDLED LICENSE AGREEMENT
THIS IS A LEGAL AGREEMENT BETWEEN YOU (“LICENSEE”) AND the Education Stock Picture Co. The COMPANY ("COMPANY" or “LICENSOR”). BY ACCEPTING AND USING THE MEDIA FILE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. THIS LICENSE IS VALID PROVIDING FULL AND FINAL PAYMENT IS RECEIVED WITHIN 45 DAYS OF OUR INVOICE.
1. Definitions:
1.1. “Media File” means all types of photographic image, Illustrations, footage, animation, layered imagery, digital image and any and all other visual image and shall include all metadata including keywords, descriptions and captions associated therewith.
1.2. “Invoice" means the agreement provided by The COMPANY or an authorized distributor that includes among other terms, the permitted scope of use of the Media File selected any limitations on the use of the Media File and the licensee fee that corresponds to the use. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
1.3. “Rights Media Bundle” Refers to a predefined set of rights allowed to the buyer split up within 5 separate groups of payment. (See Grant of rights for details –Ref. 2.0)
1.4. “Unit/Print” is equal to an object (electronic or physical) that is created in production of the title assigned to the invoice including books, supplemental education, reference, advertisements of the product, applications, documentaries views, DVD’s, and any other educational products created under the boundaries of the invoice/EULA.
1.5. The headings are used for convenience only and shall not affect its interpretation; and
1.6. References to persons shall include incorporated and unincorporated persons; references to the singular include the plural and vice versa; and references to the masculine include the feminine.
2. Grant of Rights:
2.1. Limited Use License
2.1.1. Unless stated otherwise in the Invoice, The COMPANY grants to Licensee a non-exclusive, non-sub-licensable and non-assignable right to reproduce, display, broadcast, transmit or create a derivative work (collectively “use”) the Media File identified in the Invoice, solely to the extent the use is explicitly stated in the Agreement. If Licensee is obtaining rights on behalf of a client, it may permit the client to exercise the rights granted, provided the client or any subcontractor or employee agrees to uses the Image(s) as limited in the Invoice and agrees to be bound by the terms of the Agreement. Notwithstanding the foregoing, Licensee and client remain jointly and severally liable and responsible for all uses. No ownership or copyright in any Image(s) shall transfer to Licensee by the grant of the license contained in this Agreement or Invoice. All rights not expressly granted to the Licensee are reserved to The COMPANY and the copyright holder.
2.2. Media Rights Bundle Standard Rights
2.2.1. The following rights are granted when purchasing the named rights of the following products:
Rights Managed Bundled Products
& Rights given Size Multi Use per Unit Unit Rights Electronic Rights Territory Rights Language Duration Restrictions Extra Rights
Comp Use Comp Products gives no rights to the user for final products. It may only be used as part of the choosing process.
Rights Managed Bundle Low Use Up to Full Size Multi Image Use Limited to Internal Only up to 150,000 Units/Prints Electronic Rights Given World Rights Given Unlimited Language Translations 10 Years Education Use Only add 25% for Double Page
Rights Managed Bundle Mid Use Up to Full Size Multi Image Use Limited to Internal Only up to 2,000,000 Units/Prints Electronic Rights Given World Rights given Unlimited Language Translations 10 Years Education Use Only add 25% for Double Page
Rights Managed Bundle High Use Up to Full Size Multi Image Use Limited to Internal Only up to 5,000,000 Units/Prints Electronic Rights Given World Rights Given Unlimited Language Translations 10 Years Education Use Only add 25% for Double Page
Rights Managed Bundle Cover Up to Full Size Unlimited Multi Image Use up to 5,000,000 Units/Prints Electronic Rights Given World Rights Given Unlimited Language Translations 10 Years Education Use Only add 25% for Double Page
3. Restrictions As To Use:
3.1. The use of the licensed Image(s) is strictly limited to the use, medium, period of time, print run, placement, size of image, territory and any other restrictions specified in the Invoice. Licensee may not use nor permit the use of the licensed Image(s) beyond the terms of the limited license Agreement without first obtaining an additional license, including any electronic reproduction or promotional rights.
3.2. Licensee may not use any Image in a manner that is defamatory, pornographic or obscene, whether directly or in context or juxtaposition with specific subject matter.
3.3. Licensee may not incorporate the licensed Image in any logo, trademark or service mark.
3.4. Licensee may not archive, republish or transmit any Media File on any database or to a network or bulletin board or otherwise distribute or allow any of the Media File to be distributed to or used by anyone other than the authorized users, without prior written consent from The COMPANY.
3.5. Licensee may not use the Image(s) contrary to any restriction on use provided to Licensee prior to or at the time the Image is delivered to Licensee. Restrictions may be provided with the Image information located on The COMPANY’S or any authorized distributor’s website or otherwise communicated.
3.6. Licensee may not use any of the Media File in any manner prohibited by any export laws, restrictions or regulations.
4. Digital Media Files:
4.1. Digital files are provided "as is." The COMPANY makes no representation or warranty, either express or implied, included but not limited to any implied warranties of merchantability, fitness for any particular purpose, quality of image, or compatibility with any computer hardware or other equipment, operating system or software program. The COMPANY makes no representation or warranties that the use of the site will be uninterrupted or error free.
4.2. Despite our efforts to provide accurate information, this site may contain technical or other mistakes, inaccuracies or typographical errors. Additionally, this site and its Content may include historically and culturally important images and text that may contain subjects that reflect the social attitudes and circumstances of a particular time or location. You should be aware that your search may display results containing content that may seem inappropriate to its context, or text that could be potentially offensive. You are solely responsible for determining whether your use of any Content requires the consent of any third party or the license of any additional rights, and you should not rely solely on the information provided by The COMPANY if you are unsure whether additional third-party rights are needed for your use, you are responsible for consulting with competent rights management professionals or legal counsel.
4.3. The COMPANY gives no rights or warranties with respect to the use of names, trademark, logo types, registered or copyrighted designs or works of art depicted in any image, and the licensee must satisfy itself that all necessary rights, consents or permission as may be required for reproduction are secured.
5. Sensitive Use Disclaimer:
5.1. Licensee may not use the Media File in any manner that would be deemed offensive to the model. Offensive uses include but are not limited to the use of an Image that involves or implies illegal activities, adverse medical conditions or procedures, other adverse health or mental health issues, substance abuse, welfare or economic aid, dating agencies, sexual preference, teen pregnancy, abortion and adoption, political or religious affiliation, smoking or alcohol usage, feminine hygiene, incontinence or impotence
5.2. If any Image featuring a model is used in
5.2.1. A manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service.
5.2.2. In connection with a subject that would be unflattering or controversial to a reasonable person, Licensee must accompany each such use with a conspicuous statement that indicates that the person so pictured is a model and the Image is used for illustrative purposes only.
6. Editorial Credit:
6.1.1. Each and every reproduction of the media listed on the invoice must be accompanied by the adjacent credit line:
© "Photographer" / "Source" / Learning Pictures
6.1.2. For any inadvertent or willful omission of the mandatory adjacent credit line the lessee shall pay an omission surcharge equal to TWO (2) times the reproduction fee stated on our invoice. The publisher of a printed work, however, may elect without surcharge to display the required credit line on an acknowledgment page provided that all media in the work are so credited equally without special favor and that all picture credits are listed in page by page sequence.
6.1.3. The COMPANY identified the caption for each image to the best of its ability, but cannot be held responsible for erroneous or incomplete caption information. While The COMPANY has taken all reasonable care to ensure the correct identification of any Art depicted in any media, then save in respect of death or personal injury caused by The COMPANY’s negligence, and to the fullest extent permitted by law, no liability is accepted for loss or damage occasioned to the Client or to any third party arising from or in connection with the granting of permission to reproduce or the supply or publication of a photograph or its captions howsoever caused.
6.1.4. The Client shall not use the name "Learning Pictures" or any similar name in any manner in connection with any reproduction, except as part of the acknowledgement required as stated on the EULA.
7. Releases/Captions:
7.1.1. No model releases or other releases exist on any images unless the existence of such release is specified in writing by The COMPANY No personal release exists for any of the media listed on the invoice. The lessee shall indemnify The COMPANY against any claims arising out of the use of any media unless the existence of a release has been specifically acknowledged in writing by The COMPANY In any event, the liability of The COMPANY is strictly limited to the sum paid to The COMPANY under its invoice for the use of any particular media file.
7.1.2. The COMPANY does not make or give either expressly or impliedly any warranties that any rights to reproduce the Paintings depicted in the Photographs have been granted nor does it purport to grant the same; nor does it warrant that no third parties own rights in the Paintings therein depicted. The copyright holder concerned must be approached and their permission must be sought by the Client. In addition, The COMPANY makes no claim or warranty with regard to the use by the Client of names, people or trademarks depicted in any Photograph nor does The COMPANY purport to grant such rights. Again the relevant rights holder must be approached and their permission must be sought by the Client. It is also entirely the responsibility of the Client that it should not use or reproduce the Photographs in any way as may result in any breach or infringement of the moral rights of any artist or its successors. In the event that any Photograph is used by or with the authority of the Client, then the Client shall indemnify The COMPANY against any loss, damage, proceedings or costs arising where such rights, releases or consents have not been obtained or where any Photograph is used in a manner which infringes the rights of a third party.
8. Termination and Revocation:
8.1. THE COMPANY reserves the right to automatically terminate or revoke the license contained in this Agreement and invoice without notice if Licensee or its client fails to comply with any provision of this Agreement. Upon termination, Licensee and its client must immediately stop using the Image(s), delete the Image(s) and all copies from all magnetic Media File and destroy all other copies. The COMPANY reserves the right to discontinue the use of any Image(s) for any reason and elect to replace the Image(s) with an alternate Image(s). Upon notice of any discontinuance of the use of a particular Image, Licensee, its employer and its client, if applicable, agree not to use the Image(s) in the future.
9. Electronic Storage:
9.1. For all Image(s) that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of The COMPANY and the image number, all metadata or other identification number associated with the Image(s) may be included as part of the electronic file. Licensee will take all reasonable measures to safeguard against unauthorized third-party access to the Image(s). Licensee may make one (1) low-resolution Media File (maximum file size 600k) backup copy of the Image(s) for security reasons only. Upon the expiration or earlier termination of this Agreement, Licensee shall promptly delete the Image(s) from its computer or other electronic storage systems and shall ensure that any client authorized to use the Media File deletes the Image(s) as well.
9.2. The recipient and its employees and agents agree that the above terms are made pursuant to Article 2 of the Uniform Commercial Code and agree to be bound by same.
10. Payment Terms and Cancellation Policy:
10.1. It is the responsibility of the Client to be aware of The COMPANY’s current rates, which are set out on The COMPANY’s website if applicable.
10.2. If you cancel rights granted in the invoice within seven (7) business days from the date of the invoice, you will be charged a $50 transaction fee per image. If the cancellation notice is received more than seven (7) but less than thirty (30) business days after the invoice date, a cancellation fee equal to fifty percent (50%) of the amount of the invoice will be charged. AFTER THRITY (30) DAYS, NO CANCELLATIONS WILL BE ACCEPTED AND THE FULL AMOUNT OF THE INVOICE MUST BE PAID PRIOR TO THE FOURTY-FIVE (45) DAY DUE DATE. For any cancellations, you must also pay the full service charge, production fee, processing and handling fee, and shipping fee. No license to use the image will be granted upon cancellation; all cancellations are final.
10.3. If any payment due by the Client to The COMPANY is not made in accordance with these Terms and Conditions, The COMPANY may charge interest on the overdue amount at 2% per month cumulative above the base rate from time to time on the outstanding balance from the due date of payment until actual payment before as well as after judgment.
10.4. Permission to reproduce is conditional and contingent upon payment of the fee to be notified in writing to the Client by The COMPANY in the form of an invoice, and the permission shall not commence until payment has been made by the Client and any special terms accepted. Any license granted is also strictly conditional upon full compliance by the Client with all the Terms and Conditions (including payment of fees or royalties) and any Reproduction or use of the Photographs or Reproductions outside the scope of or in breach of the terms of such License will be an infringement of copyright and other rights and the Client shall be liable to The COMPANY for all damages, costs or expenses incurred by The COMPANY in respect thereof.
10.5. From time to time The COMPANY may agree to a reduction on the standard reproduction fee for the use of a Photograph and may raise an invoice at this reduced rate. In such a case, The COMPANY shall have the right to withdraw such an invoice and to issue a revised invoice at full rates should the initial invoice not be settled within the allowed credit period of 45 days.
10.6. All sums payable under these Terms and Conditions are payable in full without any deductions whether by way of set-off, counterclaim or otherwise.
10.7. You may not assign or transfer this Agreement without The COMPANY’s prior written consent.
10.8. This Agreement and the Invoice contains all the terms of the agreement between The COMPANY and Licensee and no term or conditions may be added or deleted unless made in writing and signed by both parties.
11. Warranty and Disclaimers:
11.1. THE COMPANY warrants that:
11.1.1. It has all necessary rights and authority to enter into and perform this Agreement
11.1.2. The Image(s) will be free from defects in material and workmanship for 30 days from delivery (Licensee's sole and exclusive remedy for a breach of this warranty being the replacement of the Image(s)).
12. General Disclaimers and Limitation of Liability:
12.1. THE COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE MEDIA FILE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The COMPANY SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF LICENSEE'S USE OF THE MEDIA FILE OR OTHERWISE, EVEN IF The COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES.
12.2. THE COMPANY’S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH LICENSEE'S USE OF OR INABILITY TO USE THE MEDIA FILE (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL, TO THE EXTENT PERMITTED BY LAW, BE LIMITED TO THE VALUE OF THE LICENSE PAID BY THE LICENSEE FOR THE IMAGE(S).
12.3. THE REPRESENTATIONS AND WARRANTIES MADE BY The COMPANY IN THIS AGREEMENT APPLY ONLY TO THE IMAGE(S) AS DELIVERED BY The COMPANY AND WILL BE INVALID IF THE IMAGE(S) IS USED BY LICENSEE IN ANY MANNER NOT SPECIFICALLY AUTHORIZED IN THIS AGREEMENT OR IF LICENSEE IS OTHERWISE IN BREACH OF THIS AGREEMENT.
13. Indemnity:
13.1. Licensee Indemnity
13.1.1. If Licensee's use of the Image(s) is not authorized by this Agreement, Licensee shall defend, indemnify and hold The COMPANY and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages, liabilities and expenses (including reasonable attorneys' fees and costs), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding relating to the use of such Image(s) by Licensee, to the extent that such claim relates to the absence of a release or the Licensee's unauthorized use of the Image(s).
14. Unauthorized Use/Retroactive License Fee:
14.1. Any use of Image(s) in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling The COMPANY to exercise all rights and remedies available to it under copyright laws around the world. Licensee shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party. In addition and without prejudice to The COMPANY other remedies under this Agreement, The COMPANY reserves the right to charge and Licensee agrees to pay a fee equal to TEN (10) times The COMPANY normal license fee for use of the Image(s).
15. Miscellaneous:
15.1. If you are unsure of your rights or obligations under this Agreement do not use the web site and contact the Education Stock Picture Company by e-mail at info@Learning-Pictures.com
15.2. The Client must provide TWO (2) or more complimentary copies when available of the publication or digital copy (The COMPANY will make a reference to the preference at the time of request) in which the Reproduction appears in the quantity to be specified by the COMPANY. When required, the Client will send one (1) of the complimentary copies direct to the museum, collection or copyright holder as directed by the COMPANY.
16. Jurisdiction and Attorney’s Fees:
16.1. Any and all disputes, with the exception of copyright claims, arising out of, under or in connection with this Agreement, including, without limitation, the validity, interpretation, performance and breach hereof, shall be settled by arbitration in Chicago Illinois, pursuant to the rules of the American Arbitration Association. Judgment upon the award rendered may be entered in the highest court of the forum, State or Federal, having jurisdiction. This agreement, its validity and effect, shall be interpreted under and governed by the laws of the State of Illinois Licensee is an agent for or an employee of a non-U.S. The COMPANY but operates in a place of business in the United States or its territories, expressly agrees that any dispute regarding this contract shall be adjudicated within the United States in the manner described here. Copyright claims shall be brought in the Federal Court having jurisdiction. Licensee agrees to be subject to the jurisdiction of the Federal Court of the Northern District of Illinois. If The COMPANY is caused to present claims or suit as a result of any breach of the above terms set forth, it shall be made whole for such reasonable legal fees or costs by Licensee.
17. Disputes:
17.1. Any dispute regarding this Agreement shall be governed by the laws of the State of Illinois and applicable U.S. Federal law, including Title 17 of the U.S. Code, as amended. The parties agree to accept the exclusive jurisdiction of the state and federal courts located in Chicago, USA, regardless of conflicts of laws. 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.
17.2. If Licensee is an agent for or an employee of a non-U.S. Company but operates in a place of business in the United States or its territories, he expressly agrees that any dispute regarding this contract shall be adjudicated within the United States in the manner described here. Copyright claims shall be brought in the Federal Court having jurisdiction. Licensee agrees to be subject to the jurisdiction of the Federal Court of Illinois.
18. Legal Notice:
18.1. The parties hereto confirm that it is their wish that this Agreement, as well as any other documents relating hereto, including notices, has been and shall be written in the English language.
18.2. This Agreement (along with The COMPANY’s Privacy Policy and The COMPANY EULA, if applicable) constitutes the entire agreement between the parties.
18.3. The COMPANY 's failure to exercise or enforce any of its rights under these Terms and Conditions (or otherwise) will not be deemed to be a waiver of any such rights nor will that failure operate so as to bar the exercise or enforcement of those rights at any future time.
18.4. This Agreement shall not be modified except by a written agreement signed by duly authorized representatives of The COMPANY, provided that no purchase order or similar document issued by you shall modify this Agreement, even if signed by The COMPANY If any provision of this Agreement is found invalid or unenforceable, the remainder of this Agreement shall remain valid and enforceable according to its terms.
19. Legal Additional:
19.1. The COMPANY accepts no terms or conditions inconsistent with those stated herein. These terms and those contained on the invoice of The COMPANY constitute the entire agreement between The COMPANY and the lessee. No purported alteration or waiver of the terms stated herein shall be binding on The COMPANY unless subscribed to in writing by a corporate officer of The COMPANY
20. No Assignment:
20.1. This agreement is not assignable or transferable on the part of Licensee.
21. No waiver:
21.1. No action of The COMPANY, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of The COMPANY in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of those rights or remedies on any other occasion.
22. Entire Agreement:
22.1. This Agreement and the Invoice contains all the terms of the agreement between The COMPANY and Licensee and no term or conditions may be added or deleted unless made in writing and signed by both parties. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other writing sent by Licensee, the terms of this Agreement shall govern. License is valid providing full and final payment is received within 45 days of our invoice.
LEARNING PICTURES RIGHTS MANAGED BUNDLED LICENSE AGREEMENT
THIS IS A LEGAL AGREEMENT BETWEEN YOU (“LICENSEE”) AND the Education Stock Picture Co. The COMPANY ("COMPANY" or “LICENSOR”). BY ACCEPTING AND USING THE MEDIA FILE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. THIS LICENSE IS VALID PROVIDING FULL AND FINAL PAYMENT IS RECEIVED WITHIN 45 DAYS OF OUR INVOICE.
1. Definitions:
1.1. “Media File” means all types of photographic image, Illustrations, footage, animation, layered imagery, digital image and any and all other visual image and shall include all metadata including keywords, descriptions and captions associated therewith.
1.2. “Invoice" means the agreement provided by The COMPANY or an authorized distributor that includes among other terms, the permitted scope of use of the Media File selected any limitations on the use of the Media File and the licensee fee that corresponds to the use. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
1.3. “Rights Media Bundle” Refers to a predefined set of rights allowed to the buyer split up within 5 separate groups of payment. (See Grant of rights for details –Ref. 2.0)
1.4. “Unit/Print” is equal to an object (electronic or physical) that is created in production of the title assigned to the invoice including books, supplemental education, reference, advertisements of the product, applications, documentaries views, DVD’s, and any other educational products created under the boundaries of the invoice/EULA.
1.5. The headings are used for convenience only and shall not affect its interpretation; and
1.6. References to persons shall include incorporated and unincorporated persons; references to the singular include the plural and vice versa; and references to the masculine include the feminine.
2. Grant of Rights:
2.1. Limited Use License
2.1.1. Unless stated otherwise in the Invoice, The COMPANY grants to Licensee a non-exclusive, non-sub-licensable and non-assignable right to reproduce, display, broadcast, transmit or create a derivative work (collectively “use”) the Media File identified in the Invoice, solely to the extent the use is explicitly stated in the Agreement. If Licensee is obtaining rights on behalf of a client, it may permit the client to exercise the rights granted, provided the client or any subcontractor or employee agrees to uses the Image(s) as limited in the Invoice and agrees to be bound by the terms of the Agreement. Notwithstanding the foregoing, Licensee and client remain jointly and severally liable and responsible for all uses. No ownership or copyright in any Image(s) shall transfer to Licensee by the grant of the license contained in this Agreement or Invoice. All rights not expressly granted to the Licensee are reserved to The COMPANY and the copyright holder.
2.2. Media Rights Bundle Standard Rights
2.2.1. The following rights are granted when purchasing the named rights of the following products:
Rights Managed Bundled Products
& Rights given Size Multi Use per Unit Unit Rights Electronic Rights Territory Rights Language Duration Restrictions Extra Rights
Comp Use Comp Products gives no rights to the user for final products. It may only be used as part of the choosing process.
Rights Managed Bundle Low Use Up to Full Size Multi Image Use Limited to Internal Only up to 150,000 Units/Prints Electronic Rights Given World Rights Given Unlimited Language Translations 10 Years Education Use Only add 25% for Double Page
Rights Managed Bundle Mid Use Up to Full Size Multi Image Use Limited to Internal Only up to 2,000,000 Units/Prints Electronic Rights Given World Rights given Unlimited Language Translations 10 Years Education Use Only add 25% for Double Page
Rights Managed Bundle High Use Up to Full Size Multi Image Use Limited to Internal Only up to 5,000,000 Units/Prints Electronic Rights Given World Rights Given Unlimited Language Translations 10 Years Education Use Only add 25% for Double Page
Rights Managed Bundle Cover Up to Full Size Unlimited Multi Image Use up to 5,000,000 Units/Prints Electronic Rights Given World Rights Given Unlimited Language Translations 10 Years Education Use Only add 25% for Double Page
3. Restrictions As To Use:
3.1. The use of the licensed Image(s) is strictly limited to the use, medium, period of time, print run, placement, size of image, territory and any other restrictions specified in the Invoice. Licensee may not use nor permit the use of the licensed Image(s) beyond the terms of the limited license Agreement without first obtaining an additional license, including any electronic reproduction or promotional rights.
3.2. Licensee may not use any Image in a manner that is defamatory, pornographic or obscene, whether directly or in context or juxtaposition with specific subject matter.
3.3. Licensee may not incorporate the licensed Image in any logo, trademark or service mark.
3.4. Licensee may not archive, republish or transmit any Media File on any database or to a network or bulletin board or otherwise distribute or allow any of the Media File to be distributed to or used by anyone other than the authorized users, without prior written consent from The COMPANY.
3.5. Licensee may not use the Image(s) contrary to any restriction on use provided to Licensee prior to or at the time the Image is delivered to Licensee. Restrictions may be provided with the Image information located on The COMPANY’S or any authorized distributor’s website or otherwise communicated.
3.6. Licensee may not use any of the Media File in any manner prohibited by any export laws, restrictions or regulations.
4. Digital Media Files:
4.1. Digital files are provided "as is." The COMPANY makes no representation or warranty, either express or implied, included but not limited to any implied warranties of merchantability, fitness for any particular purpose, quality of image, or compatibility with any computer hardware or other equipment, operating system or software program. The COMPANY makes no representation or warranties that the use of the site will be uninterrupted or error free.
4.2. Despite our efforts to provide accurate information, this site may contain technical or other mistakes, inaccuracies or typographical errors. Additionally, this site and its Content may include historically and culturally important images and text that may contain subjects that reflect the social attitudes and circumstances of a particular time or location. You should be aware that your search may display results containing content that may seem inappropriate to its context, or text that could be potentially offensive. You are solely responsible for determining whether your use of any Content requires the consent of any third party or the license of any additional rights, and you should not rely solely on the information provided by The COMPANY if you are unsure whether additional third-party rights are needed for your use, you are responsible for consulting with competent rights management professionals or legal counsel.
4.3. The COMPANY gives no rights or warranties with respect to the use of names, trademark, logo types, registered or copyrighted designs or works of art depicted in any image, and the licensee must satisfy itself that all necessary rights, consents or permission as may be required for reproduction are secured.
5. Sensitive Use Disclaimer:
5.1. Licensee may not use the Media File in any manner that would be deemed offensive to the model. Offensive uses include but are not limited to the use of an Image that involves or implies illegal activities, adverse medical conditions or procedures, other adverse health or mental health issues, substance abuse, welfare or economic aid, dating agencies, sexual preference, teen pregnancy, abortion and adoption, political or religious affiliation, smoking or alcohol usage, feminine hygiene, incontinence or impotence
5.2. If any Image featuring a model is used in
5.2.1. A manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service.
5.2.2. In connection with a subject that would be unflattering or controversial to a reasonable person, Licensee must accompany each such use with a conspicuous statement that indicates that the person so pictured is a model and the Image is used for illustrative purposes only.
6. Editorial Credit:
6.1.1. Each and every reproduction of the media listed on the invoice must be accompanied by the adjacent credit line:
© "Photographer" / "Source" / Learning Pictures
6.1.2. For any inadvertent or willful omission of the mandatory adjacent credit line the lessee shall pay an omission surcharge equal to TWO (2) times the reproduction fee stated on our invoice. The publisher of a printed work, however, may elect without surcharge to display the required credit line on an acknowledgment page provided that all media in the work are so credited equally without special favor and that all picture credits are listed in page by page sequence.
6.1.3. The COMPANY identified the caption for each image to the best of its ability, but cannot be held responsible for erroneous or incomplete caption information. While The COMPANY has taken all reasonable care to ensure the correct identification of any Art depicted in any media, then save in respect of death or personal injury caused by The COMPANY’s negligence, and to the fullest extent permitted by law, no liability is accepted for loss or damage occasioned to the Client or to any third party arising from or in connection with the granting of permission to reproduce or the supply or publication of a photograph or its captions howsoever caused.
6.1.4. The Client shall not use the name "Learning Pictures" or any similar name in any manner in connection with any reproduction, except as part of the acknowledgement required as stated on the EULA.
7. Releases/Captions:
7.1.1. No model releases or other releases exist on any images unless the existence of such release is specified in writing by The COMPANY No personal release exists for any of the media listed on the invoice. The lessee shall indemnify The COMPANY against any claims arising out of the use of any media unless the existence of a release has been specifically acknowledged in writing by The COMPANY In any event, the liability of The COMPANY is strictly limited to the sum paid to The COMPANY under its invoice for the use of any particular media file.
7.1.2. The COMPANY does not make or give either expressly or impliedly any warranties that any rights to reproduce the Paintings depicted in the Photographs have been granted nor does it purport to grant the same; nor does it warrant that no third parties own rights in the Paintings therein depicted. The copyright holder concerned must be approached and their permission must be sought by the Client. In addition, The COMPANY makes no claim or warranty with regard to the use by the Client of names, people or trademarks depicted in any Photograph nor does The COMPANY purport to grant such rights. Again the relevant rights holder must be approached and their permission must be sought by the Client. It is also entirely the responsibility of the Client that it should not use or reproduce the Photographs in any way as may result in any breach or infringement of the moral rights of any artist or its successors. In the event that any Photograph is used by or with the authority of the Client, then the Client shall indemnify The COMPANY against any loss, damage, proceedings or costs arising where such rights, releases or consents have not been obtained or where any Photograph is used in a manner which infringes the rights of a third party.
8. Termination and Revocation:
8.1. THE COMPANY reserves the right to automatically terminate or revoke the license contained in this Agreement and invoice without notice if Licensee or its client fails to comply with any provision of this Agreement. Upon termination, Licensee and its client must immediately stop using the Image(s), delete the Image(s) and all copies from all magnetic Media File and destroy all other copies. The COMPANY reserves the right to discontinue the use of any Image(s) for any reason and elect to replace the Image(s) with an alternate Image(s). Upon notice of any discontinuance of the use of a particular Image, Licensee, its employer and its client, if applicable, agree not to use the Image(s) in the future.
9. Electronic Storage:
9.1. For all Image(s) that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of The COMPANY and the image number, all metadata or other identification number associated with the Image(s) may be included as part of the electronic file. Licensee will take all reasonable measures to safeguard against unauthorized third-party access to the Image(s). Licensee may make one (1) low-resolution Media File (maximum file size 600k) backup copy of the Image(s) for security reasons only. Upon the expiration or earlier termination of this Agreement, Licensee shall promptly delete the Image(s) from its computer or other electronic storage systems and shall ensure that any client authorized to use the Media File deletes the Image(s) as well.
9.2. The recipient and its employees and agents agree that the above terms are made pursuant to Article 2 of the Uniform Commercial Code and agree to be bound by same.
10. Payment Terms and Cancellation Policy:
10.1. It is the responsibility of the Client to be aware of The COMPANY’s current rates, which are set out on The COMPANY’s website if applicable.
10.2. If you cancel rights granted in the invoice within seven (7) business days from the date of the invoice, you will be charged a $50 transaction fee per image. If the cancellation notice is received more than seven (7) but less than thirty (30) business days after the invoice date, a cancellation fee equal to fifty percent (50%) of the amount of the invoice will be charged. AFTER THRITY (30) DAYS, NO CANCELLATIONS WILL BE ACCEPTED AND THE FULL AMOUNT OF THE INVOICE MUST BE PAID PRIOR TO THE FOURTY-FIVE (45) DAY DUE DATE. For any cancellations, you must also pay the full service charge, production fee, processing and handling fee, and shipping fee. No license to use the image will be granted upon cancellation; all cancellations are final.
10.3. If any payment due by the Client to The COMPANY is not made in accordance with these Terms and Conditions, The COMPANY may charge interest on the overdue amount at 2% per month cumulative above the base rate from time to time on the outstanding balance from the due date of payment until actual payment before as well as after judgment.
10.4. Permission to reproduce is conditional and contingent upon payment of the fee to be notified in writing to the Client by The COMPANY in the form of an invoice, and the permission shall not commence until payment has been made by the Client and any special terms accepted. Any license granted is also strictly conditional upon full compliance by the Client with all the Terms and Conditions (including payment of fees or royalties) and any Reproduction or use of the Photographs or Reproductions outside the scope of or in breach of the terms of such License will be an infringement of copyright and other rights and the Client shall be liable to The COMPANY for all damages, costs or expenses incurred by The COMPANY in respect thereof.
10.5. From time to time The COMPANY may agree to a reduction on the standard reproduction fee for the use of a Photograph and may raise an invoice at this reduced rate. In such a case, The COMPANY shall have the right to withdraw such an invoice and to issue a revised invoice at full rates should the initial invoice not be settled within the allowed credit period of 45 days.
10.6. All sums payable under these Terms and Conditions are payable in full without any deductions whether by way of set-off, counterclaim or otherwise.
10.7. You may not assign or transfer this Agreement without The COMPANY’s prior written consent.
10.8. This Agreement and the Invoice contains all the terms of the agreement between The COMPANY and Licensee and no term or conditions may be added or deleted unless made in writing and signed by both parties.
11. Warranty and Disclaimers:
11.1. THE COMPANY warrants that:
11.1.1. It has all necessary rights and authority to enter into and perform this Agreement
11.1.2. The Image(s) will be free from defects in material and workmanship for 30 days from delivery (Licensee's sole and exclusive remedy for a breach of this warranty being the replacement of the Image(s)).
12. General Disclaimers and Limitation of Liability:
12.1. THE COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE MEDIA FILE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The COMPANY SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF LICENSEE'S USE OF THE MEDIA FILE OR OTHERWISE, EVEN IF The COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES.
12.2. THE COMPANY’S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH LICENSEE'S USE OF OR INABILITY TO USE THE MEDIA FILE (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL, TO THE EXTENT PERMITTED BY LAW, BE LIMITED TO THE VALUE OF THE LICENSE PAID BY THE LICENSEE FOR THE IMAGE(S).
12.3. THE REPRESENTATIONS AND WARRANTIES MADE BY The COMPANY IN THIS AGREEMENT APPLY ONLY TO THE IMAGE(S) AS DELIVERED BY The COMPANY AND WILL BE INVALID IF THE IMAGE(S) IS USED BY LICENSEE IN ANY MANNER NOT SPECIFICALLY AUTHORIZED IN THIS AGREEMENT OR IF LICENSEE IS OTHERWISE IN BREACH OF THIS AGREEMENT.
13. Indemnity:
13.1. Licensee Indemnity
13.1.1. If Licensee's use of the Image(s) is not authorized by this Agreement, Licensee shall defend, indemnify and hold The COMPANY and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages, liabilities and expenses (including reasonable attorneys' fees and costs), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding relating to the use of such Image(s) by Licensee, to the extent that such claim relates to the absence of a release or the Licensee's unauthorized use of the Image(s).
14. Unauthorized Use/Retroactive License Fee:
14.1. Any use of Image(s) in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling The COMPANY to exercise all rights and remedies available to it under copyright laws around the world. Licensee shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party. In addition and without prejudice to The COMPANY other remedies under this Agreement, The COMPANY reserves the right to charge and Licensee agrees to pay a fee equal to TEN (10) times The COMPANY normal license fee for use of the Image(s).
15. Miscellaneous:
15.1. If you are unsure of your rights or obligations under this Agreement do not use the web site and contact the Education Stock Picture Company by e-mail at info@Learning-Pictures.com
15.2. The Client must provide TWO (2) or more complimentary copies when available of the publication or digital copy (The COMPANY will make a reference to the preference at the time of request) in which the Reproduction appears in the quantity to be specified by the COMPANY. When required, the Client will send one (1) of the complimentary copies direct to the museum, collection or copyright holder as directed by the COMPANY.
16. Jurisdiction and Attorney’s Fees:
16.1. Any and all disputes, with the exception of copyright claims, arising out of, under or in connection with this Agreement, including, without limitation, the validity, interpretation, performance and breach hereof, shall be settled by arbitration in Chicago Illinois, pursuant to the rules of the American Arbitration Association. Judgment upon the award rendered may be entered in the highest court of the forum, State or Federal, having jurisdiction. This agreement, its validity and effect, shall be interpreted under and governed by the laws of the State of Illinois Licensee is an agent for or an employee of a non-U.S. The COMPANY but operates in a place of business in the United States or its territories, expressly agrees that any dispute regarding this contract shall be adjudicated within the United States in the manner described here. Copyright claims shall be brought in the Federal Court having jurisdiction. Licensee agrees to be subject to the jurisdiction of the Federal Court of the Northern District of Illinois. If The COMPANY is caused to present claims or suit as a result of any breach of the above terms set forth, it shall be made whole for such reasonable legal fees or costs by Licensee.
17. Disputes:
17.1. Any dispute regarding this Agreement shall be governed by the laws of the State of Illinois and applicable U.S. Federal law, including Title 17 of the U.S. Code, as amended. The parties agree to accept the exclusive jurisdiction of the state and federal courts located in Chicago, USA, regardless of conflicts of laws. 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.
17.2. If Licensee is an agent for or an employee of a non-U.S. Company but operates in a place of business in the United States or its territories, he expressly agrees that any dispute regarding this contract shall be adjudicated within the United States in the manner described here. Copyright claims shall be brought in the Federal Court having jurisdiction. Licensee agrees to be subject to the jurisdiction of the Federal Court of Illinois.
18. Legal Notice:
18.1. The parties hereto confirm that it is their wish that this Agreement, as well as any other documents relating hereto, including notices, has been and shall be written in the English language.
18.2. This Agreement (along with The COMPANY’s Privacy Policy and The COMPANY EULA, if applicable) constitutes the entire agreement between the parties.
18.3. The COMPANY 's failure to exercise or enforce any of its rights under these Terms and Conditions (or otherwise) will not be deemed to be a waiver of any such rights nor will that failure operate so as to bar the exercise or enforcement of those rights at any future time.
18.4. This Agreement shall not be modified except by a written agreement signed by duly authorized representatives of The COMPANY, provided that no purchase order or similar document issued by you shall modify this Agreement, even if signed by The COMPANY If any provision of this Agreement is found invalid or unenforceable, the remainder of this Agreement shall remain valid and enforceable according to its terms.
19. Legal Additional:
19.1. The COMPANY accepts no terms or conditions inconsistent with those stated herein. These terms and those contained on the invoice of The COMPANY constitute the entire agreement between The COMPANY and the lessee. No purported alteration or waiver of the terms stated herein shall be binding on The COMPANY unless subscribed to in writing by a corporate officer of The COMPANY
20. No Assignment:
20.1. This agreement is not assignable or transferable on the part of Licensee.
21. No waiver:
21.1. No action of The COMPANY, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of The COMPANY in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of those rights or remedies on any other occasion.
22. Entire Agreement:
22.1. This Agreement and the Invoice contains all the terms of the agreement between The COMPANY and Licensee and no term or conditions may be added or deleted unless made in writing and signed by both parties. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other writing sent by Licensee, the terms of this Agreement shall govern. License is valid providing full and final payment is received within 45 days of our invoice.
