We at Phototake respect your privacy. We collect certain information about you to enable us to
about our online collection and use of data and how we use information that identifies you personally when you use our web site (the "Site").
USE OF SITE AND YOUR INFORMATION
By submitting your information to Phototake
you agree to the practices described below. This Site is operated in the United States, and the information collected from this Site may be retained
indefinitely, and may be stored, accessed, and used in jurisdictions whose privacy laws may be different or less protective than those of your home
jurisdiction. Phototake may disclose this information to affiliates, subsidiaries, agents (if any), and necessary payment processors, whose privacy
policies and practices may be different from those of Phototake, and for which Phototake assumes no responsibility. Information
about our customers, including personal identifying information, may be disclosed as part of any merger, sale of the Phototake assets or acquisition as
well as in the event of an insolvency, bankruptcy or receivership in which personal information would be transferred as one of the business assets of Phototake.
We reserve the right to disclose your personal information if required to do so by law, or in the good faith belief that such action is reasonably necessary to
comply with legal process, respond to claims, or protect the rights, property or safety of our Phototake, employees, customers, or the public. Other than as
described above, Phototake does not sell or rent information about its customers to third parties.
What Information Is Collected From This Site
When you visit this Site, some information may be collected automatically as part of the Site's operation such as your IP
and email address and navigational information. Your name, address, phone number, email address, password, and other information are collected
when you register online with us.
Registration enables you to access higher resolution images and to enter into a license to use images for comp purposes.
If you wish to license an image from us, your username, password, full name, telephone number, email address and postal
address, your credit card number or other personally identifying information is collected to complete the license agreement or to receive products or services.
Your email address is used to confirm the licensing transaction.
From time to time we may ask you questions relating to your user preferences in order to better serve you and improve the
use of our website. Providing information regarding your usage and preferences is always voluntary, however, if you choose not to provide the information,
some products and services may not be available to you.
We may use your email to contact you regarding our services, products and promotional offers for direct marketing
purposes. If you do not wish to receive direct marketing, you may opt out by contacting us email@example.com
and notifying us that you no longer wish to receive promotional information.
We collect information about your use of the Site and our customers in the aggregate about how our Site is used by our customers, in order to improve our service and our Site.
We collect your orders, your use of light
boxes and other account information as part of your sales history with us. You
may review and correct your information by contacting us at PTsupport@Phototakeusa.com
We may disclose to carefully chosen third parties navigational and transactional information in the form of anonymous, aggregate usage statistics and demographics but only in forms that do not
reveal your identity or confidential information.
When you visit Phototake’s Site, a text file called a cookie is placed in the browser directory of your computer's hard
drive. A cookie is information that a website can store on your web browser and later retrieve. The information that cookies collect includes the date and time
of your visit, your registration information and your navigational and licensing information. It allows the web browser to recognize the pages you
have been to when you are visiting the Site, and allows you to quickly return to viewed pages. Cookies are not linked to you as an individual and cannot be
used to track where you have been either before or after you visit Phototake’s Site. Most browsers allow you to decline cookies, but if you elect to do so,
certain pages and user features such as light boxes may not display properly. You are free to delete cookies after your session, and your browser should
contain instructions on how to do this.
We use IP addresses to analyze trends, administer the site, and gather broad demographic information for aggregate use. IP addresses are
also linked to personally identifiable information in order to better the user's experience when using the Site. We may also retain any emails, letters, or
other correspondence between you and Phototake to ensure quality control and the best possible service, although we have no obligation to do so.
Security of Our Data
Whenever you submit an order to Phototake, you can do so over a secure (i.e., encrypted) connection.
This ensures that your personal information is not at risk. Additionally, we do not store your credit card information in our
server. We use the industry standard Secure Socket Layer (SSL) encryption and firewalls to protect against loss, misuse, and alteration of any
personal data under our control. As no method of transmission over the internet, or method of electronic storage is 100% secure,
while Phototake uses all reasonable methods to protect your personal information, we cannot guarantee that it is absolutely security.
Reviewing, Updating or Correcting Your Information
If at any point you wish to access your personal information to (1) change your preferences, (2) review the accuracy,
or (3) correct, supplement or modify your information, you may either select the My
Profile page, or make a written request to PTsupport@Phototakeusa.com
Links to Other Websites
The sites to which we link may have different privacy policies and practices from those disclosed here. We assume no responsibility
for the policies or practices of linked sites.
Phototake does not intend to either solicit or collect personal information from anyone under the age of 18. If you are under 18,
you should not use or enter information on this website.
posted on this page. Your continued use of this Site will be deemed conclusive acceptance of such modification.
California Privacy Rights Under California Civil Code Section 1798.83
If you are a resident of California ("California Users"), in addition to the rights set forth in this Privacy
Policy, you generally have the right to request information from Phototake regarding the manner in which Phototake shares certain categories of personally
identifiable information with third parties for their direct marketing purposes. Under the law, however, a business is not required to provide this
their direct marketing purposes unless the customer first affirmatively agrees to the disclosure, as long as the business maintains and discloses this policy.
Rather, the business may comply with the law by notifying California Users of their rights to prevent disclosure of personal information and providing a cost
free means to exercise that right. Pleasenote that Phototake is only required to respond to one request per customer
each year. Phototake is not required to respond to requests made by means other than through this e-mail address
Users From Outside the United States
By visiting the Site, submitting information or using the Service, you acknowledge that you accept the practices
The Site is controlled and operated by Phototake from the United States.Phototake does not represent or warrant that the Site, or any part thereof, are appropriate or
available for use in any particular jurisdiction. Those who choose to access the Site do so on their own initiative and at their own risk, and are
responsible for complying with all local laws, rules and regulations. You also are subject to United States export controls in connection with your use of the
Site and/or services related thereto and are responsible for any violations of such controls, including, without limitation, any United States embargoes or
other federal rules and regulations restricting exports. Phototake may limit the availability of the Site, in whole or in part, to any person, geographic
area or jurisdiction that Phototake chooses, at any time and in Phototake’ sole discretion.
No Rights of Third Parties
Phototake complies with the U.S.-EU Safe Harbor Framework as set forth by the U.S. Department of Commerce regarding the collection, use,
and retention of personal information from European Union member countries. The Phototake has certified that it
adheres to the Safe Harbor Privacy Principles of notice, choice, onward transfer, security, data integrity, access, and enforcement. To learn more
about the Safe Harbor program, and to view the Phototake's certification, please visit
Web Site Terms & Conditions Of Use
THIS IS A LEGAL AGREEMENT BETWEEN YOU ("LICENSEE") AND PHOTOTAKE, ("PHOTOTAKE, INC."). BY ACCESSING THIS SITE, OR BY DOWNLOADING
ANY CONTENT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THIS WEBSITE
By using the website www.phototakeusa.com ("Site"), you represent that you are over eighteen (18)
and have the authority and right to agree to these terms. If you are accessing this Site on behalf of any entity, you further represent
and warrant that you are authorized to accept these terms on such entity's behalf, and that such entity agrees to indemnify PHOTOTAKE,
and you agree to be bound by such modifications, alterations or updates. This Agreement is in addition to any License
Agreement you may enter into with PHOTOTAKE, Inc..
OWNERSHIP OF THIS SITE
This Site is owned and operated by PHOTOTAKE, INC.. All elements of the site, including the text, photographic images, moving images, graphics,
illustrations, audio, software, data and the selection and arrangement of those elements ("Content") and the general design are owned by
PHOTOTAKE, Inc. or its licensors and are protected by copyright, trademark, trade dress, moral rights and other US and international laws or
treaties relating to intellectual property.
You may not use PHOTOTAKE, Inc.’s trademarks or trade names, including "Phototake" and "The Creative Link" without PHOTOTAKE, Inc.’s prior
written consent. In addition, the look and feel of the Site, including all elements of the design is the service mark, trademark and/or
trade dress of PHOTOTAKE, INC. and may not be copied, imitated or used, in whole or in part, without our prior written permission.
All other trademarks, registered trademarks, product names and PHOTOTAKE, Inc. names or logos mentioned in the Site are the property of
their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer,
supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by PHOTOTAKE, Inc..
USE OF THIS SITE AND CONTENTS
This site and its contents are intended for use by PHOTOTAKE, Inc.’s customers. You may not use the Site for any purpose unrelated
with your business with PHOTOTAKE, INC.. Unless you are a registered user, you may only browse the Site and download
watermarked images solely for Comp Use. In using the Site, you represent and warrant that you will comply with all
applicable laws and regulations, including, without limitation, those relating to the Internet, data, e-mail, privacy, and the
transmission of technical data exported from the United States or the country in which you reside
LIMITED COMP USE LICENSE
Provided you comply with the terms of this Agreement, PHOTOTAKE, INC. grants you a limited, non-transferable, nonexclusive license to download
selected Content onto your computer hard drive and to use the Content) and any derivative works or copies (collectively,
the "Content(s)") for internal use for evaluation purposes ("Comp Use") solely to determine if you wish to request a non-comp
use license. The Comp Use license automatically expires after sixty (60) days and PHOTOTAKE, Inc. reserves the right to terminate the
Comp Use License at any time. PHOTOTAKE, Inc. does not warrant that Content used for Comp Use may be available for licensing for your intended
purpose. Other than the Comp Use, the Content may not be used in any way, until an invoice granting
usage rights is paid in full. Upon termination, you and your employer must immediately stop using the Content, delete the Content and all
copies from all magnetic media and destroy all other copies.
PASSWORD PROTECTION AND SECURITY *
This web site is password protected. Only registered users who have received an authorized password from PHOTOTAKE, INC. and who are using
their own unique password are permitted to access this web site. A condition of accessing the website is that you shall not divulge, upload,
rent, sell, loan or exchange your password with any other person regardless of whether such person is another employee or subcontractor
engaged by you or your employer or otherwise. If you become aware of any loss, theft or misuse of your password, you must
inform us in writing immediately, otherwise may be liable for any loss or damage arising from such misuse. We reserve the right to terminate
your access in the event of any misuse of your password.
PROHIBITED USE OF SITE AND CONTENT
The following uses are prohibited:
- Remove, alter or change any copyright information or other notices or metadata associated with the Content
- Download, copy, or re-transmit any or all of the Site or the Content without, or in violation of, a written license or agreement with PHOTOTAKE, Inc.;
- Use any data mining, robots or similar data gathering or extraction technology or algorithms to crawl, scrape or monitor the Site
or seek information on Site Visitor’s or PHOTOTAKE, Inc.’s customers;
- Manipulate or otherwise display the Site or the Content by using framing or similar navigational technology;
- Circumvent any Site restrictions or measures to limit access to the Site
- Register or attempt to register for any products or services offered by the PHOTOTAKE, Inc. if you are not authorized by the party to do so;
- Disclose, sell or trade any password to restricted areas of the Site s or allow any third party to have access to your password.
- Interfere in any manner, whether technological or otherwise with the function of the Site or and services offered by PHOTOTAKE, Inc.
LINKS TO THIRD PARTY SITES
The linked sites are not under PHOTOTAKE, INC.’s control and it is not responsible for the Content of any linked site or any link contained in a
linked site, or any changes or updates to such sites. PHOTOTAKE, INC. is not responsible for webcasting or any other form of transmission
received from any linked site. You acknowledge that PHOTOTAKE, INC. provides the links to you only as a convenience and it not endorse the
linked sites or their use or Content.
You agrees to indemnify and hold PHOTOTAKE, INC., and the copyright holder, harmless from any and all claims, liabilities, damages,
costs and expenses, including reasonable attorney's fees, arising out of or related to the use of Content, any breach of this Site agreement,
or your violation of any rights of another.
THIS SITE AND THE CONTENT ARE PROVIDED "AS IS" AND PHOTOTAKE, INC. EXCLUDES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS
FOR A PARTICULAR PURPOSE. PHOTOTAKE, INC. WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE OR THE CONTENT,
OR THE UNAVAILABILITY OF THE SITE OR CONTENT, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, AND DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND
CONSEQUENTIAL DAMAGES. THE FUNCTIONS EMBODIED ON OR IN THE MATERIALS OF THIS SITE ARE NOT WARRANTED TO BE UNINTERRUPTED OR WITHOUT ERROR.
YOU, NOT PHOTOTAKE, INC., ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION DUE TO YOUR USE OF THIS SITE OR THE PHOTOTAKE,
INC. CONTENT. WE MAKE NO WARRANTY THAT THE SITE OR THE CONTENT IS FREE FROM INFECTION BY VIRUSES OR ANYTHING ELSE THAT HAS CONTAMINATING OR
Some US states and foreign countries do not permit the exclusion or limitation of implied warranties or liability for certain categories
of damages. Therefore, some or all of the limitations above may not apply to you to the extent they are prohibited or superseded by state
or national provisions.
LIMITATION OF LIABILITY
IN NO EVENT SHALL PHOTOTAKE, INC., ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL
DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION
IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SITE,
THE SERVICES, THE CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR
RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM PHOTOTAKE, INC., OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS,
DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT
RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO PHOTOTAKE, INC.' RECORDS, PROGRAMS OR SERVICES.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PHOTOTAKE, INC., WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE,
PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF THE SITE EXCEED ANY
COMPENSATION YOU PAY, IF ANY, TO PHOTOTAKE, INC. FOR ACCESS OR USE OF THE SITE.
PHOTOTAKE,INC. 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 CONTENT, AND THE LICENSEE MUST SATISFY ITSELF THAT ALL NECESSARY RIGHTS, CONSENTS OR PERMISSION AS MAY BE
REQUIRED FOR REPRODUCTION ARE SECURED. PHOTOTAKE, INC. IDENTIFIED THE CAPTION FOR THE CONTENT TO THE BEST OF ITS ABILITY, BUT CANNOT BE
HELD RESPONSIBLE FOR ERRONEOUS OR INCOMPLETE CAPTION INFORMATION.
UNAUTHORIZED USE FEE
Any use of Content in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright
infringement, entitling PHOTOTAKE, INC. 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 PHOTOTAKE, INC. other remedies under this Agreement, PHOTOTAKE, INC. reserves the right to
charge and Licensee agrees to pay a fee equal to five (5) times PHOTOTAKE, INC. normal license fee for use of the Content
Jurisdiction and Attorney’s Fees 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 New York pursuant to the rules of theAmerican 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 New York. If Licensee is an agent for or an employee of a non-U.S. PHOTOTAKE, Inc.
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 Southern District of New York.
If PHOTOTAKE, INC. 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.
No Assignment: This Agreement is not assignable or transferable on the part of Licensee
No Waiver :
No action of PHOTOTAKE, INC., other than express written waiver, may be construed as a waiver of any provision of this Agreement. A
delay on the part of PHOTOTAKE, INC. 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.
This Agreement and the Invoice contains all the terms of the agreement between PHOTOTAKE, INC. 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.
Notice To California Residents
Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information:
The provider of the website is PHOTOTAKE Inc.
260 West 35th Street, Suite 204
New York, NY 10001 USA
By phone: in the USA 800-542-3686
By email: Photoinfo@phototakeusa.com.
To file a complaint regarding the Site or to receive further information regarding use of the Service, send a letter to the above address,
contact Phototake via e-mail or telephone at 800-542-3686. You may also contact the Complaint Assistance Unit of the Division of
Consumer Services of the Department of Consumer Affairs in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by
telephone at 916.445.1254 or 800.952.5210.
Royalty-Free End User License Agreement
THIS LICENSE AGREEMENT IS A LEGAL AND BINDING AGREEMENT (“AGREEMENT”) BETWEEN YOU ("LICENSEE") AND PHOTOTAKE (“COMPANY”).
THIS LICENSE AGREEMENT APPLIES TO LICENSES ISSUED ONLINE (THE “AGREEMENT”). THE TERM LICENSEE INCLUDES THE CLIENT IF THE AGENT IS ACTING ON
BEHALF OF THE CLIENT AND PROVIDED BOTH AGENT AND CLIENT ARE JOINTLY AND SEVERALLY LIABLE TO COMPANY UNDER THE AGREEMENT.
“Images” means all types of visual content, including without limitation still photography, motion film or video and may include audio elements,
whether generated optically, electronically, digitally or by any other means, and shall include all metadata, keywords, descriptions and
captions associated therewith. Any reference to Images includes the whole or the part.
2. License Terms
Subject to the terms of this License Agreement, COMPANY grants Licensee a perpetual, worldwide, non-transferable, non-exclusive right to reproduce,
transmit and display, in whole or in part, and right to create derivative works with respect to COMPANY’S Images identified on Company’s Invoice,
an unlimited number of times, in any and all media for all uses other then the restrictions in Sec 4 described below. All other rights to the
Images, software and accompanying materials (if applicable), including without limitation, copyright and all other rights, are retained by COMPANY.
All rights not specifically granted are retained by COMPANY.
Licensee may alter, crop, modify or adapt the Images. Licensee may make a back-up copy of the content for internal back-up purposes provided
COMPANY’S copyright and any image identifying information embedded with the digital file is retained with the file. Limited, temporary transfers
of the Images are permitted to third parties integral to the creation of the final product, provided such third parties agree to abide by the
terms of this Agreement.
3. Number Of Users / Seat License
Licensee may store the Images on a server, image library or network configuration to be viewed by Licensee, subcontractors or its clients provided
that no more than 10 persons can access the Images. Before permitting access to more than 10 persons, Licensee must purchase additional seat
license from COMPANY.
4. Restrictions on Use
Except as provided herein, Licensee may not
- Sublicense, sell, assign, convey or transfer any of its rights under this Agreement, but Licensee may sell or license derivative works
incorporating the Images.
Without obtaining the prior written consent of COMPANY and the payment of an additional license fee, include the Images in an electronic
template intended to be used by third parties on electronic or printed products, or where the purpose is to create multiple impressions or
“on-demand” products , including but not limited to website designs, presentation templates, electronic greeting cards, business cards,
t-shirts, mugs, calendars, posters, screensavers or wallpaper for mobile devices or any other electronic or printed matter without obtaining a
license for such purpose.
Sell, license or distribute its final product in such a way that permits Licensee's end users to extract or access the Images as a stand-alone file.
- Incorporate the Images into a logo, trademark or service mark.
Distribute, post or upload the Image(s) online in a downloadable format or enable it to be distributed via mobile devices.
Use any Image in a pornographic, defamatory, libelous or otherwise illegal manner, whether directly or in context or juxtaposition with other
subject matter and materials.
- With respect to the software on the CD-ROM or other storage media, decompile, reverse engineer, disassemble or otherwise reduce the software
to a human readable form.
- Use any of the Images in any manner prohibited by any export laws, restrictions or regulations.
- Licensee may not falsely represent, expressly or impliedly, that Licensee is the original creator of a visual work that derives a substantial
part of its artistic components from the Images.
5. Product Endorsement or Sensitive Use Disclaimer
If any Image featuring a model is used in a manner that would lead a reasonable person to believe that the model personally uses or endorses a
product or service, or if the depiction of the model is used in connection with a subject that would be unflattering, embarrassing or unduly
controversial to a reasonable person, Licensee must accompany each such use with a conspicuous statement that indicates that the person is a
model and the Image is being used for illustrative purposes only. These requirements are without prejudice to the obligations of the COMPANY
regarding use of the Images contained elsewhere throughout this Agreement.
Model releases are available on Images containing models upon request. Names are removed to protect the privacy of the model, Other than model
releases for recognizable persons, COMPANY grants no rights and makes no warranties with regard to the use of names, trademarks, trade dress,
registered, unregistered or copyrighted designs or works of art or architecture depicted in any Image, and Licensee must satisfy itself that all
the necessary rights or consents regarding any of the above, as may be required for reproduction, have been obtained.
Provided COMPANY is not otherwise in breach of this Agreement and subject to Section 8, as Licensee's sole and
exclusive remedy for any breach of the representations and warranties above, Licensor shall defend, indemnify and hold harmless Licensee and
its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees from all damages,
liabilities and expenses (including reasonable outside attorney fees), arising out of or connected with any actual lawsuit or legal proceeding
alleging that Company is in breach of its warranties set forth below. No other indemnification is offered by Licensor under the Agreement.
Licensee agrees to defend, indemnify and hold COMPANY and its 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 as a result of claims by third parties relating to Licensee's use of any Image(s) outside the scope of this
Agreement or any other breach by Licensee of this Agreement.
8. Warranties and Limitation of Liability
COMPANY represents that it has the right to grant the license herein and warrants the Images to be free from defects in material and workmanship
for 30 days from delivery. The sole and exclusive remedy for a breach of the foregoing warranty is the replacement of the CD-ROM or refund of
the purchase price, at COMPANY’S option.
COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL,
PUNITIVE, SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING
OUT OF LICENSEE'S USE OF THE IMAGES, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES.
COMPANY’S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH LICENSEE'S USE OF OR INABILITY TO USE THE IMAGES (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 USE
OF THE IMAGES.
Licensee may have additional rights under state law.
9. Payment Terms
No licenses are granted until full payment of COMPANY’S invoice is received. Unless credit terms have specifically been agreed directly between
COMPANY and the Licensee, Payment of COMPANY'S invoices must be received on the sooner of Thirty (30) days of its date net, without any discounts,
or prior to the publication of any Image. The licensee agrees to pay COMPANY a service charge of 1.5 % percent per month on any unpaid balance
after this time period for the use of the Image.
Any disputes concerning the invoice must be submitted in writing, within Ten (10) business days of the invoice date, or the licensee shall be
deemed to have accepted the invoice as issued.
10. Cancellation Policy for Royalty-Free Images:
All licenses are final; no refunds or credits will be allowed.
11. Copyright Infringement and Liquidated Damages
In the event that the Licensee utilizes any Image without or prior to the granting of a license, COMPANY reserves the right to seek damages
through legal means unless the licensee agrees to reimburse COMPANY, as liquidated damages, a sum equal to five (5) times the market value
price charged for such use of a Image.
If the licensee fails to make the payment as outlined above, within Thirty (30) days of COMPANY’S invoicing such fee, this liquidated damage
provision shall be void and COMPANY reserves the right to sue for copyright infringement, including attorneys' fees and all associated costs.
The license contained in this Agreement will terminate automatically without notice from COMPANY if Licensee fails to comply with any provision
of this Agreement. Upon termination, Licensee must immediately (i) stop using the Images, (ii) destroy or, upon the request of COMPANY, return
the Images to COMPANY, and (iii) delete or remove the Images from Licensee's premises, computer systems and storage (electronic or physical).
Licensor reserves the right to revoke the license to use any Images for good cause and elect to replace such Image with an alternative Image.
Upon notice of any revocation of a license for any Images/footage, Licensee shall immediately cease using such Images, shall take all reasonable
steps to discontinue use of the replaced Images in products that already exist and shall inform all end-users and clients of same.
If the Image(s) is used on a social media or other third party website; the Images may only be used as part of another work and not as a
stand-alone file; and any rights shall automatically be revoked in the event that the third party website seeks to exploit purported rights to
the Images contrary to the terms of this Agreement.
If one or more of the provisions contained in the Agreement is found to be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be reformed only to the extent to make it
15. Choice of Law/Attorney’s fees
This Agreement will be governed in all respects by the laws of the State of New York, without reference to its laws relating to conflicts of law.
Licensee agrees that the County Court of the State of New York for New York County and the United States District Court for the Southern District
of New York located in New York City are the agreed and appropriate forums for any such suit, and consent to service of process by registered mail
or overnight courier with proof of delivery. The United Nations Convention on Contracts for the International Sale of Goods does not govern
this Agreement. If COMPANY is obligated to go to court to enforce any of its rights, the Licensee agrees to reimburse COMPANY for its legal
fees and disbursements if COMPANY is successful.
No action of COMPANY, other than express written waiver, may be construed as a waiver of any provision of this Agreement.
17. Entire Contract
This contract contains all the terms of the license agreement and no terms or conditions may be added or deleted unless made in writing and
signed by an authorized representative of 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.
Rights-Managed End User License Agreement
THIS IS A LEGAL AGREEMENT BETWEEN YOU (“LICENSEE”) AND PHOTOTAKE ("PHOTOTAKE" or “LICENSOR”). BY ACCEPTING AND USING THE IMAGES
AND BY CLICKING THE "I ACCEPT" BUTTON, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
"Images" means all types of visual content, including without limitation still photography, motion film or video and may have an audio component,
whether generated optically, electronically, digitally or by any other means, and shall include all metadata, keywords, descriptions and captions
associated therewith. Any reference to Images includes the whole or the part.
"Invoice" means the agreement provided by PHOTOTAKE or an authorized distributor that includes among other terms, the permitted scope of use of
the Images selected any limitations on the use of the Images 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.
2. Grant of Rights.
Unless stated otherwise in the Invoice, PHOTOTAKE 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 Images identified in the Invoice, solely to the extent
the use is explicitly stated in the Agreement. Images licensed for editorial purposes may be cropped for placement purposes, provided that the
editorial integrity of the Image is not compromised, but shall not, under any circumstances, otherwise be rotated, altered, changed or
manipulated, or combined with other Images without PHOTOTAKE'S prior written permission.
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 use the Images 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 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 PHOTOTAKE and the copyright holder.
3. Restrictions As To Use.
The use of the licensed Images 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.
Unless additional rights are granted pursuant to a separate license agreement, Images licensed for editorial use may not be used for any
commercial, promotional, endorsement, advertising or merchandising use.
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.
Licensee may not incorporate the licensed Image in any logo, trademark or service mark.
Licensee may not make the Images available in any medium in a manner intended to allow or invite a third party to download, extract or
access the Images as a stand-alone file.
Licensee may not archive, republish or transmit any images on any database or to a network, social networking site or bulletin board or otherwise
distribute or allow any of the Images to be distributed to or used by anyone other than the authorized users, without prior written consent
Unless otherwise expressly licensed, Images may not be modified, reconfigured or repurposed for use in any mobile-directed web sites or mobile
applications that are specifically created for viewing of Images on mobile devices.
Unless otherwise specified in the license grant, Licensee may not, directly or indirectly, reproduce the Images for promotional purposes,
such as compilations, screen shots, in-context promotions or on file-sharing or social networking websites such as YouTube, Facebook, Pinterest,
Bebo, and the like.
If the license grant includes use on any social media or other third party website; the Images may only be used as part of another work and
not as a stand-alone file; and any rights shall automatically be revoked in the event that the third party website seeks to exploit purported
rights to the Images contrary to the terms of this Agreement.
Licensee may not use the Images 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 PHOTOTAKE’S or any authorized distributor’s website or otherwise
Licensee may not use any of the Images in any manner prohibited by any export laws, restrictions or regulations.
4. Sensitive Use Disclaimer.
Licensee may not use the Images 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.
If any Image featuring a model is used in (i) a manner that would lead a reasonable person to believe that the model personally uses or endorses
a product or service; or (ii) 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
5. Editorial Credit.
If any Image is used in an editorial manner, the credit line, "[Photographer's name]/PHOTOTAKE", must appear adjacent to the Image
or as otherwise indicated by PHOTOTAKE. If the Image consist of footage or audiovisual material, credit shall be provided, in equal size and
comparable placement to credit(s) accorded to licensors of other similar content, substantially in the form "[Footage] [Imagery]
supplied by [Collection Name]/PHOTOTAKE".
If Licensee omits the credit, an additional fee equal to two (2) times the original amount invoiced shall be payable by Licensee at
PHOTOTAKE’S discretion. The foregoing fee shall be in addition to any other rights or remedies that PHOTOTAKE may have at law or in equity.
It is understood that Images used for advertising purposes do not require credit. Licensee may not falsely represent that it is
the creator of the Image.
PHOTOTAKE will notify Licensee if it has obtained a model release and/or a property release for Image(s), either in the release status
information accompanying the Image(s) on PHOTOTAKE'S website, in the Invoice or by other means. If no such notification is given, then no such
model or property release has been obtained. PHOTOTAKE grants no rights and makes no warranties with regard to the use of names, people,
trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Image(s).
Licensee shall be solely responsible for determining whether a release is sufficient for the proposed use or is required in connection with any
proposed use of such Image(s). Licensee acknowledges that some jurisdictions provide legal protection against a person's image, likeness or
property being used for commercial purposes without their consent.
PHOTOTAKE used commercially reasonable efforts to identify the caption for each Image, but cannot be held responsible for erroneous or incomplete
7. Termination and Revocation.
PHOTOTAKE 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 and destroy all other copies. PHOTOTAKE 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
8. Electronic Storage.
For all Image(s) that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of PHOTOTAKE 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)
high-resolution 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 Images deletes the Image(s) as well.
9. Payment Terms and Cancellation Policy.
Time is of the essence in the performance by Licensee of its obligations for payments.
Payment of the Invoice is to be net thirty (30) days. Any claims for adjustment or rejection of terms must be made to PHOTOTAKE within ten (10)
days after receipt of invoice.
||Full refund if notified in writing within 14 days from date of invoice.
50% refund if notified in writing within 30 days.
No refund thereafter
10. Warranty and Disclaimers.
PHOTOTAKE warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; and (ii) 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)).
General Disclaimers and Limitation of Liability
PHOTOTAKE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE IMAGES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PHOTOTAKE 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 IMAGES OR OTHERWISE, EVEN IF PHOTOTAKE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES.
THE REPRESENTATIONS AND WARRANTIES MADE BY PHOTOTAKE IN THIS AGREEMENT APPLY ONLY TO THE IMAGE(S) AS DELIVERED BY PHOTOTAKE AND WILL
BE INVALID IF THE IMAGE IS USED BY LICENSEE IN ANY MANNER NOT SPECIFICALLY AUTHORIZED IN THIS AGREEMENT OR IF LICENSEE IS OTHERWISE IN BREACH
OF THIS AGREEMENT.
YOU MAY HAVE ADDITIONAL RIGHTS UNDER SOME STATE LAWS.
Section 11. Indemnity
Licensor Indemnity. Provided Licensee is not otherwise in breach of this Agreement and subject to Section 10, as Licensee's sole and
exclusive remedy for any breach of the representations and warranties above, Licensor shall defend, indemnify and hold harmless Licensee,
and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees from all damages,
liabilities and expenses (including reasonable outside attorney fees), arising out of or connected with any actual lawsuit or legal
proceeding alleging that Phototake is in breach of its warranties set forth above. No other indemnification is offered by Licensor under
Licensee Indemnity.If Licensee's use of the Image(s) is not authorized by this Agreement, Licensee shall defend, indemnify and hold
PHOTOTAKE, and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees
and Licensee’s contributor 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).
12. Unauthorized Use.
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 PHOTOTAKE 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 PHOTOTAKE’S other remedies under this Agreement, PHOTOTAKE reserves the right to charge and Licensee agrees to pay a fee equal to
five (5) times PHOTOTAKE normal license fee for use of the Image(s).
Notification of Misuse Licensee will immediately notify PHOTOTAKE if it becomes aware or suspects that any third party that has gained
access to the Licensed Material through Licensee is wrongfully using the Image(s), in whole or in part, or is violating any of PHOTOTAKE'S
intellectual property rights, including, but not limited to, trademarks and copyrights.
Audit and Compliance Upon reasonable notice, Licensee shall provide sample copies of Images as used by PHOTOTAKE. In addition, upon
reasonable notice, PHOTOTAKE may, at its discretion, either through its own employees or through a third party, udit Licensee's records directly
related to this Agreement and use of Image(s) in order to verify compliance with the terms of this Agreement. If any such audit reveals an
underpayment by Licensee to PHOTOTAKE of five percent (5%)] or more of the amount Licensee should have paid for the time period that is the
subject of the audit, in addition to paying PHOTOTAKE the amount of such underpayment, Licensee shall also reimburse PHOTOTAKE for the costs
of conducting such audit. Where PHOTOTAKE reasonably believes that Image(s) are being used outside of the scope of the license granted under
this Agreement, Licensee shall, at PHOTOTAKE' request, provide a certificate of compliance signed by an officer of Licensee, in a form to be
approved by PHOTOTAKE.
Jurisdiction and Attorney’s Fee. 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 New York, New York 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 New York Licensee is an agent for or an employee of a non-U.S. Phototake 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 Southern District of New York. If PHOTOTAKE 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.
No Assignment This Agreement is not assignable or transferable on the part of Licensee.
No Waiver. No action of PHOTOTAKE, other than express written waiver, may be construed as a waiver of any provision of this Agreement.
A delay on the part of PHOTOTAKE 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.
Entire Agreement: This Agreement and the Invoice contains all the terms of the agreement between PHOTOTAKE 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.