ImagesYourWay.com ARTIST'S CONTENT SUPPLY AGREEMENT

This Agreement governs the terms by which photographers, videographers or other artists provide photographic, video, illustrations and other media Content to members of the PhotosYourWay.com (“PYW”) and ImagesYourWay.com community, hereby contract with ImagesYourWay.com LLC (“IYW”)   to act as the Artist’s Non-Exclusive Agent basis as to the individual Artist through the web site located at www.ImagesYourWay.com (“IYW”or “ImagesYourWay” or the “Site”). The individual works of the Artist may be licensed to IYW as an Exclusive for which IYW pays higher commissions or on a Non-Exclusive basis.  This Artist's Content Supply Agreement (“ACSA”) is in addition to the Universal Terms of Service (UTOS) applicable to the Site that all persons providing Content to or downloading Content from PYW and/or IYW have previously entered into. In the event of any inconsistency between this UTOS, the Artist’s Commission Agreement (“ACA”), the Artist Content Supply Agreement (“ACSA”), Content License Agreement (“CLA”) and the UTOS, the terms of this Artist’s Content Supply Agreement shall govern. 

1.      Background of Agreement

a.   This is a legal Agreement between any member intending to upload data or materials onto the Site (in this Agreement referred to as “you” or the “Artist”) and ImagesYourWay (“IYW”) operator of the Site. The Artist wishes to appoint ImagesYourWay as its Non-Exclusive agent to license and distribute Content (as defined below) produced by the Artist on the terms and conditions set forth in this Agreement and ImagesYourWay's form of Commission Agreement and the Content License Agreement, as such agreement may be amended from time to time or modified for certain clients consistent with the rights granted herein.  For the purposes of this Agreement, Artist’s Commission Agreement and Content License Agreement shall be deemed to include all of the Use Options and provisions to which Artist has opted-in using the administrative tools relating to his or her account profile on the Site and/or the designation of the individual works as Exclusive or Non-Exclusive.

b.   Upon accepting the terms of this Agreement, you may make Content available to ImagesYourWay by following the “Upload” procedures and policies identified on the relevant portion of the Site. Each upload of Content will be governed by the terms and conditions of this Agreement, which you will be confirming by use each time you upload Content for distribution by IYW.

c.   THIS IS A FAIRLY LENGTHY DOCUMENT, AND IT CONTAINS MANY IMPORTANT PROVISIONS THAT AFFECT YOUR RIGHTS AND OBLIGATIONS. BY TICKING THE CORRECT BOX “I AGREE” BOX, YOU THEREBY AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE TERMS OF THE CONTENT LICENSE AGREEMENT. WE ENCOURAGE YOU TO PRINT A COPY OF THE AGREEMENT FOR YOUR RECORDS.

This Agreement remains in full force and effect until terminated in accordance with its terms. If at any time the terms and conditions of this Agreement are no longer acceptable to the Artist, you must follow the termination procedures set forth below under “Term and Termination”.

2.   Content

a.   The parties acknowledge that the Artist may, from time to time, provide information, software, photographs, illustrations, audio files, video files, animations, flash files, data files, code snippets and other material to IYW using the Upload procedures of the Site or such other procedures as the parties may mutually agree.  “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.  ImagesYourWay, in its sole discretion, may determine which of such Content is suitable for posting on the Site or other means of distribution, and only such Content as it deems suitable will be considered “Accepted Content” for the purposes of applicable provisions of this Agreement.

b.   In addition to the terms of this Agreement, the parties acknowledge that the all Content is subject to the policies and procedures outlined in the Site, the terms of which are incorporated by reference into this Agreement. Any breach of the rules relating to acceptable Content outlined in the Site will be deemed to be a breach of this Agreement.

3.   Grant of Authority

a.   The Artist hereby appoints ImagesYourWay as Artist's Non-Exclusive agent to license Content to third parties within the jurisdictions of ImagesYourWay's business. For all Content, Artist grants ImagesYourWay the right to use, reproduce, distribute, redistribute, publish, republish, upload, post, transmit, crop, package, repackage, produce and sell prints or similar image products or publicly perform or display Content to prospective licensees through the Site or other venues which it may determine from time to time, and the right to grant perpetual, worldwide, Non-Exclusive or Exclusive, Standard Use, Extended Use and Exclusive Term licenses or sub-licenses to end-users in accordance with the terms of the Artist’s Commission Agreement (a current copy of which can be found here) that the Artist hereby acknowledges having reviewed and approved. The Artist will determine if each photo is Exclusive or Non-Exclusive for distribution by IYW additionally the Artist will determine if the Content can be used for Standard Uses, Extended Use or Exclusive Term License at time of upload.

b.   In addition to the foregoing grant, ImagesYourWay may use Accepted Content for its own business purposes relating to the promotion of the Site and its distribution programs, and expand the market for the licensing of Accepted Content (including, without limitation, the use of the Accepted Content and the Artist's registered and unregistered trademarks relating to the Content for marketing, sales and promotional efforts whether on the Site or through third parties). No com pensation shall be due to the Artist for use of Accepted Content for such business purposes.

c.   The Parties agree that all rights, including title and copyright, in and to the uploaded Accepted Content will be retained by the Artist, and no title or copyright is transferred or granted in any way to ImagesYourWay or any third party except as provided in this Agreement and the Content License Agreement. Except to its affiliated and associated com panies or as specifically permitted in this Agreement, ImagesYourWay may not distribute Content to any third party for the purposes of resale or sub-license, it being understood that nothing herein shall restrict ImagesYourWay from providing access to the Site or Accepted Content to prospective buyers through an application program interface or other utility so long as all purchases are subject to the Content License Agreement

4.   Intellectual Property Matters

a.   The Artist acknowledges that ImagesYourWay prohibits any Content or any other material that infringes on any patent, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded to the Site.

b.   By uploading Content, you are warranting that you own all proprietary rights, including copyright, in and to the Content. In addition, to the extent that the Content contains images of people or persons, you represent and warrant that you have obtained and have in my possession a valid and binding model release from all required parties in substantially the same form as Model Release Form that will permit the uses for such Content contemplated in the Content License Agreement. You also warrant that where required by applicable law, you have also obtained and have in your possession a valid and binding release in substantially the same form as   Property Release Form    elating to any identifiable property contained in the Content that might reasonably lead to the identity of or be required by the owner of such property to permit the uses under the Content License Agreement.

c.   The Artist agrees that neither ImagesYourWay nor any of its directors, officers, employees, partners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Content.

5.   Compensation

a.   ImagesYourWay agrees to pay a portion of the fees collected in respect of Accepted Content that is downloaded or otherwise purchased or rented according to the rate schedule set forth in the Artist’s Commission Agreement, which may be modified from time to time.  The parties acknowledge that the Commission Schedule may differentiate based on rather the Content is Licensed by you to IYW on an Exclusive or Non-Exclusive basis and among the various types of Content, such as resolution, still images, Flash files, video footage or different licensed uses such as Standard Use or Extended Use otherwise in accordance with its terms.  Commission Schedules are subject to change in the sole discretion of ImagesYourWay in the ordinary course of its business without notice by posting such changes on the Site. If at any time the Rate Schedule is not acceptable to the Artist, you may refrain from providing additional Content or terminate this Agreement in accordance with its terms.

b.   Payments to Artist shall be in accordance with the Artist’s Commission Agreement.

 

6.   Passwords

You acknowledge and agree that you will be responsible for each and every access or use of the Upload portions of the Site that occurs in conjunction with your Member Name and such passwords, and that ImagesYourWay is authorized to accept your Member Name and password as conclusive evidence that you wish to upload Content pursuant to this Agreement. ImagesYourWay shall have no liability or responsibility to monitor the provision of Content under your member name and password.

7.   Managing Content

ImagesYourWay does not and cannot review all com munications or Content uploaded to the Site and is not responsible for the Content, quality, or consequences of your uploading such com munications or Content. Notwithstanding the foregoing, ImagesYourWay reserves the right to delete, move, refuse to accept or edit any com munication or Content that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or is otherwise unacceptable in IYW’s sole discretion, and you hereby agree to forfeit any fees payable in respect of such Content to ImagesYourWay or as it may direct. ImagesYourWay shall have the right but not the obligation to correct any errors or omissions in any Content, as it may determine in its sole discretion. You acknowledge that any screening of Content performed by ImagesYourWay to determine Accepted Content is done as a courtesy only.

NOTICE: You acknowledge that the Content you provide pursuant to this Agreement that becomes Accepted Content may be purchased or licensed by members with the intention that such licensees will adhere to the terms of the Content License Agreement. ImagesYourWay cannot take responsibility for the com pliance by purchasers and licensees of the terms of such agreements, and you acknowledge and agree to the possibility of Content being used in a manner that is not contemplated in this Agreement or the Content License Agreement. You also agree that notwithstanding any rights you may have to pursue the licensees of such Content at law, ImagesYourWay shall have no liability to you or any person claiming through you for any breach by a licensee of the terms of any agreement respecting Accepted Content. ImagesYourWay will use commercially reasonable efforts to assist in the protection of your intellectual property rights, at your request and expense.

8.   Confidential Information

a.   The Artist acknowledges that the Confidential Information (defined below) which it obtains through the entering into of this Agreement, the use of the Site and the provision of Content constitutes valuable, confidential, proprietary information of ImagesYourWay and its licensors, and agrees that during the term of this Agreement and thereafter it shall not, without the express written consent of ImagesYourWay, use or disclose to any other person any such Confidential Information, except as specifically authorized under this Agreement.

b.   For the purposes of this Agreement, “Confidential Information” means any and all data, information, documents, software or materials relating to the business and management of ImagesYourWay, its members, clients, customers, affiliates, licensors or licensees, that is designated as confidential or ought reasonably to be considered confidential, including but not limited to: their business model and operations, processes, products, designs, pricing, promotions, business plans, business opportunities, finances, research, development, know-how, trade-secrets, training materials, personnel, identities or personal information of any kind pertaining to members, licensors, licensee, sub-licensees, clients, methodologies, Site Content belonging to others and other intellectual property.

9.   Representations and Warranties

The Artist hereby represents and warrants as follows:

1.                                                     The Artist has the legal capacity and authority to enter into this Agreement, is the sole and exclusive owner of the Content, has the right to grant all of the license rights contemplated to be provided under this Agreement, and has not granted any rights or licenses to any Content or any other intellectual property or technology that would conflict with this Agreement;

2.                                                     No portion of the Content as delivered to ImagesYourWay from time to time, contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement, and all Content will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Site or the Content or any other hardware or com puter system, or which would otherwise render inaccessible or impair the use of the Content or the Site in any way;

3.                                                     The Content will include all necessary descriptive information to enable its effective marketing on the Site, which information will be complete and accurate in all material respects and will not include false, misleading or inapplicable metadata intended to or which has the effect of keyword “doping” or improperly altering search results that would otherwise be applicable to such Content; and

4.                                                     The Content delivered to ImagesYourWay hereunder represents original creations and expressions of subject matter, and no Content infringes any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defames or casts into disrepute in any manner any third party.

10. Indemnity

a.    You agree to indemnify, defend and hold PYW and IYW its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Content (collectively, the “ImagesYourWay Parties”) harmless from and against any and all claims, liability, losses, 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: (i) any use or alleged use of the Site or provision of Content under your Member Name by any person, whether or not authorized by you; (ii) or resulting from any com munication made or Content uploaded under your Member Name; (iii) any breach by you of this Agreement; or (iv) any claim threatened or asserted against any ImagesYourWay Party to the extent such claim is based upon a Contention that any of the Content used within the scope of this Agreement, the ACA and the CLA infringes any copyrights, trade secrets, trademarks, right of privacy or publicity, or other intellectual property rights of any third party.

b.   ImagesYourWay reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with IYW’s defense of such claim.

11. Term and Termination

a.   This Agreement is effective until terminated. You may terminate this Agreement at any time by giving thirty (30) days written notice to ImagesYourWay using help@ImagesYourWay.com or such other means of written notice acceptable to ImagesYourWay which enables confirmation of your identity and your intention to terminate. ImagesYourWay may also terminate this Agreement for any reason by giving you thirty (30) days notice by e-mail at the last address contained in your membership information. If ImagesYourWay terminates your membership pursuant to the terms of the Membership Agreement, such termination shall be deemed to be notice of termination of this Agreement, as well.

b.   Either party may terminate this Agreement upon written notice effective immediately upon receipt if the other party (i) liquidates all or substantially all of its assets, dissolves as a corporation other than through inadvertence, or otherwise ceases to do business in a material way, or (ii) makes an assignment for the benefit of creditors, or (iii) files a petition in bankruptcy, petitions or applies for a receiver or trustee for all or any substantial part of its property and such receiver or trustee is appointed, or commences, or has commenced against it, a proceeding under any bankruptcy, reorganization, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, any of which shall remain in force for a period of thirty (30) days or more, or (iv) is adjudicated insolvent or bankrupt, or (v) is in breach of this Agreement.

c.    In addition, ImagesYourWay may deem an account to be terminated and may off-set any fees or credits contained in such account against its costs of administration if there has been: (i) in the reasonable opinion of ImagesYourWay, any material misrepresentation made as to the capacity, identity or copyright ownership of Content or the Artist provided hereunder; or (ii) no log-in or other activity in the account for 24 months despite reasonable com mercial efforts to contact Artist based on the information provided through the Site as part of the account profile of such Artist.

12. Effect of Termination

a.   Upon the termination of this Agreement, the grant of authority given to ImagesYourWay shall cease subject to the following conditions: (i) ImagesYourWay shall remove Accepted Content from the Site within thirty (30) days of the termination of this Agreement; (ii) notwithstanding termination, ImagesYourWay shall have the right to continue licensing Accepted Content until it is removed from the Site; and (iii) regardless of the expiration or termination of this Agreement, ImagesYourWay will continue, in accordance with this Agreement, to pay com pensation due to the Artist in respect of licenses granted to members during any transitional period, subject to any rights of set-off under this Agreement or at law.

b.   Upon termination, ImagesYourWay will be entitled to retain all amounts owing to the Artist for a period of sixty (60) days to determine any applicable rights of set-off, and shall be entitled to deduct from such amounts, a reasonable administrative fee for establishing, managing and terminating your account.

c.   Notwithstanding any other provision in this Agreement, the termination or expiration of this Agreement shall not alter or affect the rights granted to licensees or sub-licensees by ImagesYourWay pursuant to this Agreement.

d.   Termination of this Agreement shall operate without prejudice to the ImagesYourWay's rights, defenses and limitations of liability provided under this Agreement, the Membership Agreement or the Terms of Use, which rights, defenses and limitations of liability shall survive termination of this Agreement. In addition, the provisions of this Agreement relating to: Managing Content, Confidential Information, Representations and Warranties, Indemnity, Disclaimer of Warranties and all limitations of liability, shall survive termination of this Agreement and continue in full force and effect.

13. DISCLAIMER OF WARRANTIES

a.   THE SITE, INCLUDING ANY CONTENT CONTAINED THEREIN, ARE PROVIDED BY IMAGESYOURWAY “AS IS” WITHOUT REPRESENTATION, 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 SITE OR THE CONTENT WILL BE MADE AVAILABLE FOR SALE OR LICENSE OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE.

b.   IMAGESYOURWAY DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE SITE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.

14. LIMITATION OF LIABILITY

a.   YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN.

b.   IN NO EVENT SHALL IMAGESYOURWAY OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES 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 THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF IMAGESYOURWAY HAS 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, IMAGESYOURWAY'S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE SITE OR THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED BY IMAGESYOURWAY FOR THE CONTENT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED ONE THOUSAND ($1,000.00) UNITED STATES DOLLARS.

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. IN SUCH JURISDICTIONS, THE LIABILITY OF IMAGESYOURWAY OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

15. Applicable law

a.   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.

b.   You consent to service of any required notice or process upon you by email, registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time you are first granted access to the membership portions of the Site. You agree to waive any right you may have to (i) trial by jury; and (ii) to com mence or participate in any class action against ImagesYourWay related to the Site or this Agreement.

c.   Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be submitted to arbitration in Minneapolis , Minnesota , pursuant to the rules of the Arbitration Act (Minnesota) in effect at the time arbitration is demanded.

d.   If ImagesYourWay is obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, you agree to reimburse ImagesYourWay for its legal fees, costs and disbursements if ImagesYourWay is successful.

16. General

a.   You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the terms of the Universal Terms of Terms of Service, Artist Commission Agreement 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 binding upon your heirs, executors and legal representatives, as the case may be, 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.   This Agreement can be amended by the written agreement of the parties or by ImagesYourWay posting amendments on the Upload portion of the Site. Continued provision of Content or failure to terminate this Agreement within thirty (30) days of posting of such amendment will be deemed to be acceptance of the amendment by the Artist and it will be incorporated by reference into this Agreement.

17. Contact

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

18. 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 A MEANS FOR THE SALE OR LICENSE OF YOUR ACCEPTED 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 LLC. Nov 2007  

This document was last updated on November 21, 2007