ImagesYourWay.com, CONTENT LICENSE AGREEMENT

This Agreement governs the terms by which members and clients of ImagesYourWay.com obtain the right to use stock photographic, illustrations, animations, video, footage, and other media content provided by members of the YourWay community through the PhotosYourWay.com (“PhotosYourWay”) and ImagesYourWay.com web sites (“Site”). This Content License Agreement (“CLA”) is in addition to the Universal Terms of Service (“UTOS”) applicable to the Site and to all persons providing content to or downloading content from the Site have previously entered into. In the event of any inconsistency between this Agreement, and the UTOS (both of which are incorporated into this Agreement by reference), the terms of this Agreement shall govern.    In the event of conflict with this Agreement the Artist Supply Agreement shall govern.    

1. Background of Agreement

(a) This is a fairly lengthy document, and it contains many important provisions that affect your rights and obligations. By selecting “I Agree” or otherwise signifying your acceptance, you accept this Agreement either for yourself or on behalf of your employer or the entity that is identified as the member account holder, and agree to be bound by its provisions. If you are accepting on behalf of your employer or the entity that is the member account holder, you represent and warrant that you have full legal authority to bind your employer or such other entity. If you do not have such authority or you do not accept or agree with these terms, do not accept the Agreement and do not download the Content.

(b) In this Agreement: (i) “you” or the “Client” means you or, if you are accepting on behalf of your employer or member account entity, then “you” means that employer or entity and affiliates; (ii) “ImagesYourWay” or “we” means ImagesYourWay.com LLC, operator of the Site; and (iii) “Content” means any photographic image, illustration, animation, Flash file, film or video footage, visual representation generated optically, electronically, digitally or by any other means or in any media or other material that you are downloading from the Site, together with any accompanying material. 2a of Artist c supply agreemt

(c) This Agreement is set up for the Client to determine which use best fits your needs.     For each piece of content you select you will also need to select the license for its particular use.  You can select to enter into either our Standard content license (the “Standard License”) or an Extended Use License where one or more of the restrictions of the Standard License are amended for your proposed use of the Content (an “Extended Use License”) or Exclusive Term License for exclusive use for a period of 365 days, by clicking on the particular license you are agree to for the particular content.  The options for the Extended Use License and Exclusive Term License uses are dependent upon the Content and whether the supplier of the Content has opted-in to the Extended Use License and/or the Exclusive Term License options or not available because another Client has previously purchased the Exclusive Term License. If you do not specify an Extended Use License or Exclusive Term License there is no Extended Use License  or Exclusive Term License option for the Content you have requested, your download of Content will be subject to the Standard License.

2. Standard Use License Terms

We hereby grant to you a non-exclusive, non-transferable worldwide sub-license (sub-licenses may also be referred to as licenses) to use the Content for the Permitted Uses (as defined below). Unless the activity or use is a Permitted Use, you cannot do it. All other rights in and to the Content, including, without limitation, all copyright and other intellectual property rights relating to the Content, are retained by ImagesYourWay or the supplier of the Content, as the case may be.

3. Permitted Standard Use License Uses:

(a) You may only use the Content for those advertising, promotional and other specified purposes which are Permitted Uses. Permitted Uses. Subject to the restrictions described under Prohibited Uses below, the following are “Permitted Uses” of Content:

advertising and promotional projects, including printed materials, product packaging, presentations, film and video presentations, commercials, catalogues, brochures, promotional greeting cards and promotional postcards (ie. not for resale or license);

entertainment applications, such as books and book covers, magazines, newspapers, editorials, newsletters, and video, broadcast and theatrical presentations; on–line or electronic publications, including web pages to a maximum of 800 x 600 pixels; prints, posters (i.e. a hardcopy) and other reproductions for personal use or promotional purposes specified in (1) above, but not for resale, license or other distribution; and any other uses approved in writing by ImagesYourWay.

   For clarity, you may not use the Content in products for resale, license or other distribution, unless (i) the proposed use is allowable under an Extended Use License which is available for the Content; or (ii) if the original Content has been fundamentally modified or transformed sufficiently that it constitutes an original work entitling the author or artist to copyright protection under applicable law, and where the primary value of such transformed or derivative work is not recognizable as the Content nor is the Content capable of being downloaded, extracted or accessed by a third party as a stand-alone file (satisfaction of these conditions will constitute the work as a “Permitted Derivative Work” for the purposes of this Agreement). For example, you cannot superficially modify the Content, print it on a t-shirt, mug, poster, template or other item, and sell it to others for consumption, reproduction or re-sale.

(b) Seat Restrictions. Only you are permitted to use the Content, although you may transfer files containing Content to your clients, printers, or ISP for the purpose of reproduction for Permitted Uses, provided that such parties shall have no further or additional rights to use the Content and cannot access or extract it from any file you provide. You may install and use the Content in only one location at a time, although subject to the Prohibited Uses and the other terms of this Agreement, you are entitled to utilize the Permitted Uses an unlimited number of times. You may physically transfer the Content and its archives from one location to another, in which case you may use the Content at the new location instead. If you require the Content to be in more than one location or accessible by more than one person you must download the Content from the Site for each such use or obtain an Extended Use License that will permit multi-seat use of the Content. You may make one (1) copy of the Content solely for back-up purposes, and you must reproduce all proprietary notices on this single back-up copy.

If there is any doubt that a proposed use is a Permitted Use, you should contact ImagesYourWay’s service@ImagesYourWay.com for guidance.

4. Standard Use License Prohibitions

(a) Prohibited Uses. You may not do anything with the Content that is not expressly permitted in the preceding section or permitted by an Extended Use License. For greater certainty, the following are “Prohibited Uses” and you may not:

(1)use the Content in design template applications intended for resale, whether on-line or not, including, without limitation, website templates, Flash templates, business card templates, electronic greeting card templates, and brochure design templates;

(2)use or display the Content on websites or other venues designed to induce or involving the sale, license or other distribution of “on demand” products, including postcards, mugs, t-shirts, posters and other items (this includes custom designed websites, as well as sites such as www.cafepress.com);

(3) use the Content in any posters (printed on paper, canvas or any other media) or other items for resale, license or other distribution for profit;

(4)use any of the Content as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo;

(5) incorporate the Content in any product that results in a re-distribution or re-use of the Content (such as electronic greeting card web sites, web templates and the like) or is otherwise made available in a manner such that a person can extract or access or reproduce the Content as an electronic file;

(6) use the Content in a fashion that is considered by ImagesYourWay (acting reasonably) as or under applicable law is considered pornographic, obscene, immoral, infringing, defamatory or libelous in nature, or that would be reasonably likely to bring any person or property reflected in the Content into disrepute;

(7) use or display any Content that features a model or person in a manner that (i) would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavor; or (ii) that depicts such person in a potentially sensitive subject matter, including, but not limited to mental and physical health issues, social issues, sexual or implied sexual activity or preferences, substance abuse, crime, physical or mental abuse or ailments, or any other subject matter that would be reasonably likely to be offensive or unflattering to any person reflected in the Content;

(7) to the extent that source code is contained within the Content, reverse engineer, decompile, or disassemble any part of such source code;

(8)remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Content;

(9)sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Content or the rights granted under this Agreement;

(10) install and use the Content in more than one location at a time or post a copy of the Content on a network server or web server for use by other users;

(11) use or display the Content in an electronic format that enables it to be downloaded or distributed via mobile devices or shared in any peer-to-peer or similar file sharing arrangement;

(12) use the Content for editorial purposes without including the following credit adjacent to the Content: “ImagesYourWay.com/©Artist’s Member Name(if known)]; or either individually or in combination with others, reproduce the Content, or an element of the Content, in excess of 50,000 times without obtaining an Extended Use License, in which event you shall be required to pay an additional royalty fee equal to US $0.03 for each reproduction    or use which is in excess of 50,000 reproductions. This additional royalty does not apply to advertisements in magazines, newspapers or websites or to broadcast by television, web-cast or theatrical production.

5. Extended Use License means:  You can use the Content for unlimited production runs, use for multi seats, custom products for resale, web marketing but the Content can still be used by other Clients.

6. Exclusive Term License means: All rights as with Standard and Extended but no other clients can use the Content from the time you purchase the download and for 12 months (365 days) from the date of transaction.

7. Excess Reproduction Run

In the event you contravene subparagraph 4(a)(12) above without purchasing an Extended Use License, you further agree to notify ImagesYourWay in the event that you (or a combination of you and others involved with you) reproduce or use the Content, or an element of the Content in excess of 50,000 times. Such disclosure notice must be sent to ImagesYourWay each and every month after which the Content, or an element of the Content, has been reproduced in aggregate over the term of this Agreement in excess of 50,000 times. Each such notice must contain the number of uses or reproductions made in any particular month if during the month the aggregate quantity for the month exceeds 1,000. The first such notice will only require disclosure of those reproductions which are in excess of 50,000. ImagesYourWay shall invoice you for the fees associated with such excess use and any subsequent excess runs and you agree to pay such invoices within 30 days of date of invoice for    

8. Term of Agreement

(a) This Agreement is effective until it is terminated. You can terminate this Agreement by destroying the Content, along with any copies or archives of it or accompanying materials (if applicable), and ceasing to use the Content for any purpose. The Agreement also terminates without notice from ImagesYourWay if at any time you fail to comply with any of its terms. Upon termination, you must immediately (i) cease using the Content and for any purpose; (ii) destroy or delete all copies and archives of the Content or accompanying materials; and (iii) if requested, confirm to ImagesYourWay in writing that you have complied with these requirements.

(b) ImagesYourWay reserves the right to elect at a later date to revoke or amend the license granted by this Agreement and replace the Content with an alternative for any reason. Upon notice, sent to the address or contact information provided by you for your member account, or such other address as you may advise us in writing to use, from time to time, of such replacement, the license for the replaced Content immediately terminates for any products that do not already exist, and this license automatically applies to the replacement Content. You agree not to use the replaced Content for future products and to take all reasonable steps to discontinue use of the replaced Content in products that already exist.

9. Limited Representations and Warranties

(a) The Site acts as an exchange of Content between those who provide Content to the Site and those who wish to use such Content. ImagesYourWay grants no rights and makes no warranties regarding the use of names, people, trademarks, trade dress, patented or copyrighted designs or works of art or architecture or other forms of intellectual property represented in any Content. While we have made reasonable efforts to correctly categorize and keyword the Content, ImagesYourWay does not warrant the accuracy of such information.

(b) THE CONTENT IS PROVIDED “AS IS” WITHOUT REPESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. IMAGESYOURWAY DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE, YOU (AND NOT IMAGESYOURWAY) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.

IN PARTICULAR AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IF YOU ARE DOWNLOADING CONTENT THAT IS IN A FLASH FORMAT OR FILE (WHETHER .SWF OR OTHERWISE) IMAGESYOURWAY MAKES NO REPRESENTATION OR WARRANTY RESPECTING SUCH CONTENT WHATSOEVER, WHETHER AS TO OWNERSHIP, TECHNICAL OR LEGAL COMPLIANCE, OR OTHERWISE.

(c) Certain jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You have specific rights under this warranty, but you may have others, which vary from jurisdiction to jurisdiction.

10. Limitation of Warranties and Liability

(a) ImagesYourWay’s entire liability and your exclusive remedy, with respect to any claims arising out of your use of the Content, or out of your actions in downloading the Content, shall be as follows:

You may, upon request to ImagesYourWay, be permitted to download the Content again, at a location ImagesYourWay will provide for you;

If you continue to be unable to download the Content, ImagesYourWay will refund the fee actually paid by you for such Content, provided ImagesYourWay determines in its sole and absolute discretion that you have been unable to download such Content successfully.

(b) IN NO EVENT SHALL IMAGESYOURWAY OR ANY OF ITS AFFILIATES OR CONTENT PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE CONTENT, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.

(c) IN ANY EVENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF IMAGESYOURWAY UNDER THIS AGREEMENT, THE LICENSE PROVIDED HEREUNDER, OR THE USE OR EXPLOITATION OF ANY OR ALL OF THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY YOU TO IMAGESYOURWAY UNDER THIS AGREEMENT IN RESPECT OF THE USE OF THE RELEVANT CONTENT.

(d) SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

11. Indemnification

You agree to indemnify, defend and hold ImagesYourWay, its affiliates, its Content providers and their respective directors, officers, employees, shareholders, partners and agents (collectively, the “ImagesYourWay Parties”) harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any ImagesYourWay Party as a result of or in connection with any breach by you or anyone acting on your behalf of any of the terms of this Agreement.

10. General Provisions

(a) You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the terms of the Membership Agreement and Terms of Use and any other agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Agreement you agree to be bound by them.

(b) ImagesYourWay’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.

(c) This Agreement is personal to you and is not assignable by you without ImagesYourWay’s prior written consent. ImagesYourWay may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.

(d) If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.

(e) You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the Content, pursuant to this Agreement.

(f) The Site is controlled, operated and administered by ImagesYourWay from the state of Minnesota , USA . The Site can be accessed from other countries around the world. As each of these jurisdictions has laws that may differ from those of the State of Minnesota and the United States, you acknowledge and agree that this Agreement will be governed under the laws of the State of Minnesota and the laws of the United States were applicable therein (without reference to conflicts of laws principles). You hereby irrevocably submit to the exclusive jurisdiction of the Courts of Minnesota, County of Hennepin with respect to the subject matter of this Agreement. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

12. Contact

If you have concerns relating to this Agreement, please contact ImagesYourWay at service@ImagesYourWay.com.com or via phone at (952)938-1300.

13. Acknowledgement

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF IMAGESYOURWAY AGREEING TO PROVIDE THE CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND IMAGESYOURWAY, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND IMAGESYOURWAY RELATING TO THE SUBJECT OF THIS AGREEMENT.

© ImagesYourWay.com LLC. 2007. All rights reserved. ImagesYourWay.com and PhotosYourWay.com are trademarks and copyrights of PhotosYourWay.com LLC and ImagesYourWay.com LLC.

This document was last updated November 21, 2007