END USER LICENSING AGREEMENT
Please read this carefully to make sure you are purchasing photographs with the correct license that are suitable for your needs.
Background of Agreement
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) “Sunshine Coast Stock Photography” or “we” means Sunshine Coast Stock Photography, 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.
Standard License Terms
We hereby grant to you a perpetual, non-exclusive, non-transferable worldwide license 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 Sunshine Coast Stock Photography.
Permitted Standard License Uses
(a) You may only use the Content for those advertising, promotional and other specified purposes which are Permitted Uses (as defined below). For clarity, you may not use the Content in products for resale, license or other distribution; 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. These uses will not be permitted as or constitute Permitted Derivative Works. Any use of the Content that is not a Permitted Use shall constitute infringement of copyright.
(b) Seat Restrictions. Only you are permitted to use the Content, although you may transfer files containing Content or Permitted Derivative Works 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 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. 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.
(c) 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;
prints, posters (i.e. a hardcopy) and other reproductions for personal use or promotional purposes specified in above, but not for resale, license or other distribution;
Standard License Prohibitions
Prohibited Uses. You may not do anything with the Content that is not expressly permitted in the preceding section. For greater certainty, the following are “Prohibited Uses” and you may not:
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;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, zazzle.com, photobox.com etc);
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;
use any of the Content as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo;
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;
use the Content in a fashion that is considered by Sunshine Coast Stock Photography (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;
use or display any Content that features a model or person in a manner (a) that would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavour; or (b) except where accompanied by a statement that indicates that the Content is being used for illustrative purposes only and any person depicted in the Content is a model, 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, unless the Content itself clearly and undisputedly reflects the model or person in such potentially sensitive subject matter in which case the Content may be used or displayed in a manner that portrays the model or person in the same context and to the same degree depicted in the Content itself;
remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Content;
sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Content or the rights granted under this Agreement;
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;
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;
use Content identified as “Editorial Use Only”, for any commercial, promotional, endorsement, advertising or merchandising use. For clarification, in this Agreement “Editorial Use Only” of Content means use relating to events that are newsworthy or of general interest and expressly excludes any advertorial sections (i.e. sections or supplements featuring brand and/or product names or sections or supplements in relation to which you receive a fee from a third-party advertiser or sponsor);
use the Content for editorial purposes without including the following credit adjacent to the Content or in audio/visual production credits: “©Sunshine Coast Stock Photography
Either individually or in combination with others, reproduce the Content, or an element of the Content, in excess of 250,000, in which event you shall be required to pay for an Extended License. This additional royalty does not apply to advertisements in websites or to broadcast by television, web-cast or theatrical production.
If the Content is reproduced on a social media platform or other third party website, (i) the rights granted herein shall automatically be revoked in the event that the platform website seeks to exploit purported rights to the Content contrary to the terms of this Agreement, and (ii) in such event, upon Sunshine Coast Stock Photography’s request, you shall remove any Content from such platform or website.
Permitted Extended License Uses
The Standard License Agreement limits the amount of times you may print the Content to 250,000 reproductions. By purchasing this extension, you can make an unlimited number of reproductions as a part of commercial or advertisement purposes in magazines and newspapers;
as a design element on a website, video game, or CD-ROM, Web site template or software product for distribution or use by others;
as part of marketing, advertising, or promotional materials, including print ads, mailers, handouts and packaging of promotional materials;
in connection with your business or entity, eg: corporate identity documents, and letterhead;
as decor in an office, lobby, or public area, restaurant, or retail store;
in a PowerPoint presentation provided that a reasonably prominent statement is included on the same page as the Content as follows: “Certain images and/or photos on this page are the copyrighted property of Sunshine Coast Stock Photography, their Contributors or Licensed Partners and are being used with permission under license. These images and/or photos may not be copied or downloaded without permission from Sunshine Coast Stock Photography.”;
in any electronic distribution (not in its original but in its final form) or items for personal use or resale, including design elements or constituents in eBooks, licensed software, website templates, flash templates and document templates provided such use is not intended to allow the re-distribution or re-sale of the Content by another party.; and/or
in any printed (not for electronic distribution) material, merchandise or product for personal use or resale, including calendars, consumer merchandise (T-shirts, posters, art, etc.) and product packaging provided such use is not intended to allow the re-distribution or re-use of the Content;
Extended License Prohibitions
– distribute the Content, electronically or in hard copy, except as specifically authorized under paragraph above;
– authorize any third party to use the Content for any purpose or resell, sub-license, or otherwise make available the Content for use or distribution separately or detached from a product or Web page;
– share Content across a network or service, on a CD or DVD or any media, or in any other way that enables Content to be accessed by any third party (subject to the provisions in this Agreement), downloaded or distributed via mobile devices or shared in any peer-to-peer or similar file sharing arrangement;
– use Content in any logo or part of any trademark;
– under any circumstances use Content in connection with any pornographic, obscene, immoral, defamatory or illegal materials; endorsement of product(s); sensitive mental/health/other similar aspect of contexts or subjects.
Term of Agreement
(a) This Agreement is effective until it is terminated. You can terminate this Agreement by destroying the Content and any Permitted Derivative Works, 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 sunshinecoaststockphotography.com 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 sunshinecoaststockphotography.com in writing that you have complied with these requirements.
(b) sunshinecoaststockphotography.com 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, or any Permitted Derivative Works, for future products and to take all reasonable steps to discontinue use of the replaced Content, or any Permitted Derivative Works, in products that already exist.
(c) Upon notice from sunshinecoaststockphotography.com, or upon your knowledge that any Content is subject to a threatened, potential or actual claim of infringement of another’s right for which sunshinecoaststockphotography.com may be liable, you must immediately and at your own expense (i) stop using the Content; (ii) delete or remove the Content from your premises, computer systems and storage (electronic or physical); and (iii) ensure that your clients, printers or ISPs do likewise. sunshinecoaststockphotography.com shall provide you with replacement Content (which shall be determined by sunshinecoaststockphotography.com in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.
Sunshine Coast Stock Photography and the Content are made available to you “AS IS,” “AS AVAILABLE,” and “WITH ALL FAULTS.” Sunshine Coast Stock Photography, its employees, directors, and officers, and anyone else associated with Sunshine Coast Stock Photography disclaims, to the fullest extent permitted by law, any and all warranties, express or implied, including without limitation warranties of merchantability, fitness for a particular purpose, non infringement, or that your usage of Sunshine Coast Stock Photography will be uninterrupted, error free of computer viruses or other damaging materials. When you access and acquire Content, you do so at your risk. Sunshine Coast Stock Photography, its employees and officers, and anyone else acting on behalf of Sunshine Coast Stock Photography also disclaims any and all common-law duties, including without limitation duties of reasonable care and workmanlike effort.
sunshinecoaststockphotography.com warrants that, except in respect of Content identified as “Editorial Use Only”,: (i) your use of the Content in accordance with this Agreement and in the form delivered by sunshinecoaststockphotography.com will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity; and (ii) all necessary model and/or property releases for use of the Content in the manner authorized under this Agreement have been obtained.
You acknowledge that no releases are generally obtained for Content that is identified as “Editorial Use Only” and that some jurisdictions provide legal protection against a person’s image, likeness or property being used for commercial purposes when they have not provided a release. For Content identified as “Editorial Use Only”, sunshinecoaststockphotography.com does not grant any right nor make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, designs or works of art or architecture depicted therein. In such cases, you shall be solely responsible for determining whether release(s) is/are required in connection with any proposed use of the Content identified as “Editorial Use Only”, and shall be responsible for obtaining such release(s).
While sunshinecoaststockphotography.com has made reasonable efforts to correctly categorize, keyword, caption and title the Content, we do not warrant the accuracy of such information.
Additionally, we do not warrant the accuracy of metadata that may be provided with the Content.
Limitation of Liability
(a) Provided that the Content is only used in accordance with this Agreement and you are not otherwise in breach of this Agreement and as your sole and exclusive remedy for breach of the representations and warranties set forth above, sunshinecoaststockphotography.com shall, subject to the terms of this agreement defend, indemnify and hold harmless you, your parent, subsidiaries and affiliates and respective directors, officers and employees from all damages, liabilities and expenses (including reasonable outside legal fees), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that the possession, distribution or use of the Content by you is in breach of the representations and warranties set forth above.
The indemnification set out above is conditioned on your prompt notification in writing to sunshinecoaststockphotography.com of such claim and our right to assume the handling, settlement or defense of any claim or litigation. You agree to cooperate with sunshinecoaststockphotography.com in the defense of any such claim or litigation and shall have the right to participate in such litigation at your sole expense. sunshinecoaststockphotography.com shall not be liable for legal fees and other costs incurred prior to the notice of the claim.
sunshinecoaststockphotography.com shall not be liable for any damages, costs or losses arising as a result of modifications made to the content by you or the context in which the content is used by you.
You agree to indemnify, defend and hold sunshinecoaststockphotography.com, its affiliates, its Content providers and their respective directors, officers, employees, shareholders, partners and agents 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 sunshinecoaststockphotography.com partly as a result of or in connection with any breach or alleged breach by you or anyone acting on your behalf of any of the terms of this Agreement.
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.
This Agreement will be governed under the laws of the State of Queensland and the federal laws of Australia 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. You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time the Content was downloaded, or such other address as you may advise us in writing to use, from time to time.
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 finally settled under the Rules of Arbitration of the International Chamber of Commerce by a single Arbitrator appointed in accordance with such rules. The arbitration shall take place in the State of Queensland, and shall be conducted in the English language.
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 SUNSHINECOASTSTOCKPHOTOGRAPHY.COM 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 SUNSHINECOASTSTOCKPHOTOGRAPHY.COM, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND SSUNSHINECOASTSTOCKPHOTOGRAPHY.COM RELATING TO THE SUBJECT OF THIS AGREEMENT.