User Agreement
EMPIRE IMAGES MEDIA LLC
LICENSE AGREEMENT
Date of Last Revision: May 2015.
PLEASE READ THESE TERMS AND CONDITIONS FOR A LICENSE (“TOS”) CAREFULLY BEFORE USING THE WEBSITE, DOWNLOADING ANY IMAGES (AS HEREINAFTER DEFINED) OR UTILIZING ANY SERVICES OFFERED BY EMPIRE IMAGES MEDIA LLC (“EMPIRE”, “WE” OR “US”) INCLUDING ACCESSING ANY OF OUR WEBSITES AND MOBILE APPLICATIONS (collectively, the “Site”). The TOS are between the individual or entity licensee (“you” or “Licensee”) and Empire Images Media LLC, a limited liability company with its office at 65 West 55th Street, Suite 6F, New York, NY 10019 as the licensor hereunder (“Empire“).
By registering to use the Site and downloading any image from the Site (each an “Image“, and (collectively, “Images“), you agree to be bound by the TOS, the Empire Privacy Policy and Empire’s Website Terms of Use, which documents are incorporated herein and made a part hereof by this reference.
We reserve the right, at our sole discretion, to change, modify or otherwise alter these TOS at any time. Such changes and/or modifications shall become effective immediately upon the posting thereof. Please review the terms and conditions of these TOS to keep apprised of any changes. Your continued use of the Site following the posting of changes and/or modifications will constitute your acceptance of the revised terms and conditions. Please make sure that you read and understand all such changes. If you do not agree to these TOS, as same may be amended from time to time, do not download or use any Images. Your failure to comply with the terms hereof could result in the immediate termination of your account. The TOS in effect at the time you are billed will control your rights and obligations with regard to Images downloaded during each such billing cycle.
To use an Image(s) as permitted by these TOS, you must download that Image(s) using your account. IF THE LICENSEE IS AN INDIVIDUAL, EACH ACCOUNT PROVIDES A LICENSE WHICH AUTHORIZES ONE NATURAL PERSON TO LICENSE, DOWNLOAD AND USE IMAGES. IF THE LICENSEE IS AN ENTITY, EACH ACCOUNT PERMITS EMPLOYEES OF THAT ENTITY TO LICENSE, DOWNLOAD AND USE IMAGES. We reserve the right to monitor accounts and institute means to stop users from sharing their login information with other individuals or entities.
LIMITED LICENSE
All Images on the Site are protected by United States and international copyright laws and treaties. As between you on the one hand, and Empire and its contributors on the other, Empire and its contributors own all rights, including the copyrights in and to the Images. Empire reserve all rights in and to the Images not expressly granted to Licensee by these TOS. Your rights to use any Image are subject to these TOS and are conditioned upon Licensee making payment to Empire for your use of the Images. If you fail to make any payment to Empire when due for any reason, your account will be deemed delinquent. If your account becomes delinquent, your right to use any Images downloaded at any time shall automatically terminate unless all payments together with any interest thereon and Empire’s costs of collection, bank charges and credit card processing fees are received by Empire no later than ten (10) days from the date that your account became delinquent.
Subject to the restrictions set forth herein, Empire hereby grants you a non-exclusive, non-sub licensable, non-transferable, worldwide, perpetual, right to use, modify, reproduce Images for editorial purposes only (i) on websites and digital media and (ii) in printed media, including magazines, and newspapers. Images may not be used for any commercial, promotional, endorsement, advertising or merchandising use. For clarification, in these terms of service use of Images in an “editorial” manner means use relating to events that are newsworthy or of public interest and expressly excludes any advertorial sections (i.e. sections or supplements in relation to which Licensee receives a fee from a third-party advertiser or sponsor).
Images may be cropped or edited for technical quality provided that the editorial integrity of the Images is not altered. Empire does not warrant the accuracy of metadata or any other information related to the Images.
Images may not be modified, reconfigured or repurposed for use in any mobile-directed websites or mobile applications that are specifically created for viewing of Images on mobile devices.
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 an Image.
All rights in the Images not expressly granted herein are reserved by Empire for itself and its Contributors. No ownership or copyright in any Image shall pass to Licensee by the issuance of the license contained in these TOS. Except as expressly stated in these TOS, Empire grants Licensee no right or license, express or implied, to the Images. As no rights of ownership or copyright in the Images are transferred to Licensee, Licensee may not assert any right to revenue from a collecting society in respect of photocopying, digital copying or other secondary uses of the Images contained in Licensee’s work using Images.
RESTRICTIONS
Unless expressly permitted by these TOS, no other person may use Images which you have licensed hereunder.
You may not (i) use an Image other than as specified the preceding section, (ii) make Images available to a third party on a digital asset management system, shared drive or the like for the purposes of sharing or transferring such Image(s), (iii) resell, redistribute, provide access to, share or transfer any Image except as specifically provided herein (uploading any Image to a web site at a resolution that exceeds the display resolution of the intended viewing device will be deemed to be an attempt to redistribute the Image), (iv) publicly display an Image: (a) as a standalone file in any digital format on the internet; or (b) in any digital format without imposing technical or written restrictions intended to prevent the use of such Images by third parties, unless the Image is incorporated into a design with text or other content, and the overlaid or embedded text or other such content covers an area of at least 33% of the display size of the Image, (v) use or display any Image on websites or in connection with any service designed to sell or induce sales of user-customized “print on demand” products of any kind using or incorporating Image(s), (vi) use an Image together with pornographic, defamatory, or otherwise unlawful or immoral content, (vii) use an Image in such a manner that it infringes upon any third party’s trademark or other intellectual property rights, or would give rise to a claim of deceptive advertising or unfair competition, (viii) use an Image in a way that places any person depicted therein in a way that a reasonable person might find offensive – this includes, but is not limited to, the use of Images: a) in pornography, b) in any advertisements or promotional materials; and c) uses that are defamatory, or contain otherwise unlawful, offensive or immoral content, (ix) use an Image containing the likeness of a person if such use implies that the model engages in any immoral or illegal activity or suffers from a physical or mental infirmity, ailment or condition, (x) use any Image on a social media platform or other third party website that claims to acquire rights in the Image contrary to these TOS as a result of such use and upon Empire’s request, you shall immediately remove any Images from such platform or website, (xi) use Empire Images in a manner that competes with Empire’s business, (xii) withhold a credit attribution or fail to provide a copyright notice required by these TOS, (xiii) use any Image (in whole or in part) as a trademark, service mark, logo, or other indication of origin, or as part thereof, or to otherwise endorse or imply the endorsement of any goods and/or services, (xiv) falsely represent, expressly or by way of reasonable implication, that any Image was created by you or a person other than the copyright holder(s) of that Image, (xv) stockpile or otherwise store downloaded Images that are not used within twelve (12) months of the date on which you first downloaded such Image, which failure to use such Image within twelve (12) months of the date of your first download of that Image, will result in your loss of the right to use such Image, (xvi) use automated programs, applets, bots or the like to access the Site or any content thereon for any purpose, including, by way of example only, downloading Images, indexing or caching the content of the website.
Credit Attributions and Copyright Notices
You shall accord the following credit line adjacent to the Image. Such credit and attribution shall be in substantially the following form: [Photographer’s Name/Empire Images]. Failure to accord a credit in accordance with these TOS will be deemed a breach of the Agreement.
If an Image is used in an audio/visual production in either an editorial context or a non-editorial context but where credits are accorded to other providers of licensed material, credit shall be accorded, where technically feasible, in equal size and comparable placement to such credit, substantially in the following form: “[Photographer name]/Empire Images”. In connection with the use of “Empire Images” or any other of Empire’s trade names, trademarks, logos or service marks (“Marks”), Licensee acknowledges that (i) the Marks are and shall remain the sole property of Empire, (ii) except as expressly required to satisfy the foregoing credit obligations, Licensee has no right of use in or to the Marks and (iii) Licensee will not contest the validity of the Marks.
MISCELLANEOUS
Except where Licensee is specifically notified that a model and/or property release has been obtained, Empire does not grant any right nor make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs or works of art or architecture depicted in any Image. Licensee shall be solely responsible for determining whether release(s) is/are required in connection with any proposed use of Image, and Licensee shall be solely responsible for obtaining all necessary release(s).
Empire shall be under no obligation to issue refunds under any circumstances, unless required by law. However, in the event that Empire determines that you are entitled to a refund of all or part of the fees you paid; such refund shall only be made to the credit card account originally used by you to purchase your product. If your product was paid for by check, your refund will be made by check.
“Non-transferable” as used herein means that except as specifically provided in these TOS, you may not sell, rent, load, give, sublicense, or otherwise transfer to anyone, an Image or the right to use an Image. In addition, the work you produce with the Image must be used for yourself, your direct employer, client, or customer, who must be the end user of your work. You agree to take all commercially reasonable steps to prevent third parties from duplicating any Image. If you become aware of any unauthorized duplication of any Empire Image(s) please notify us via email at support@empireimages.co.
You agree to indemnify and hold Empire, its officers, employees, shareholders, directors, managers, members and suppliers harmless against any damages or liability of any kind arising from any use of the Image other than the uses expressly permitted by these TOS. You further agree to indemnify Empire for all costs and expenses that Empire incurs in the event that you breach any of the terms of this or any other agreement with Empire.
Empire warrants and represents that (i) unaltered Images downloaded and used in full compliance with these TOS and applicable law, will not infringe any copyright, trademark or other intellectual property right, nor will such unaltered Images violate any third parties’ rights of privacy or publicity, (ii) unaltered Images do not and will not violate any US law, statute, ordinance, or regulation, (iii) unaltered Images are not and will not be defamatory, libelous, pornographic, or obscene. EMPIRE MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER OTHER THAN THOSE EXPRESSLY MADE IN THIS PARAGRAPH.
Subject to the terms hereof, and provided that you have not breached the terms of this or any other agreement with Empire, Empire shall defend, indemnify, and hold you harmless up to the “Limits of Liability” (as hereinafter defined). Such indemnification shall only apply to claims for damages directly attributable to Empire’s breach of the foregoing warranties and representations, together with the expenses (including reasonable attorneys’ fees), arising out of or directly connected to any actual or threatened lawsuit, claim, or legal proceeding alleging that the possession, distribution, or use of Images downloaded and used by you pursuant to these TOS violate Empire’s warranties contained herein. This indemnification is conditioned upon you notifying Empire, in writing, of any such claim or threatened claim, no later than five (5) business days from the date you know or reasonably should have known of the claim or threatened claim. Such notification must include all details of the claim then known to you (e.g., Empire Image Number, a copy of the Image as used, name and contact information of person and/or entity making the claim, nature and date of alleged claim, copies of any correspondence received and/or sent in connection with the claim). The notification must be emailed to Empire at support@empireimages.co with a hard copy to Empire Images Media LLC, 65 West 55th Street, Suite 6F, New York, NY 10019 via Certified Mail, Return Receipt Requested, or overnight courier, recipient’s signature required. Empire shall have the right to assume the handling, settlement or defense of any claim or litigation to which this indemnification applies. You agree to cooperate with Empire in the defense of any such claim and shall have the right to participate in any litigation at your own expense. Empire shall not be liable for any legal fees and/or other costs incurred prior to receiving complete notification of the claim as provided herein.
Notwithstanding anything to the contrary contained herein, Empire shall not be liable for any damages, costs or losses arising as a result of modifications made to Images or the context in which the Images are used by you.
Empire’s total maximum aggregate obligation and liability to any one Customer for all claims shall be limited to Ten Thousand United States Dollars – US$10,000.00 – (the “Limits of Liability“).
These TOS and your use of the Site shall be governed by and construed in accordance with the laws of the United States and the State of New York applicable to agreements made and to be entirely performed within the State of New York (even if your use is outside of the State of New York), without regard to its conflict of law provisions. You agree that with respect to any disputes or claims not subject to arbitration (as set forth above), any action at law or in equity arising out of or relating to the Site or these TOS shall be filed only in the state and federal courts located in the State of New York and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts.
These TOS shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning of the language hereof. The invalidity or unenforceability of any part of these TOS shall not affect the validity or enforceability of the balance hereof.
If you are entering into these TOS on behalf of your employer or other entity, you warrant and represent that you have the full right and authority to do so. In the event that you do not have such authority, you agree that you will be personally liable to Empire for any breaches of the terms of these TOS.
IN THE EVENT THAT YOU BREACH ANY OF THE TERMS OF THIS OR ANY OTHER AGREEMENT WITH EMPIRE, EMPIRE SHALL HAVE THE RIGHT TO TERMINATE YOUR ACCOUNT WITHOUT FURTHER NOTICE. SUCH TERMINATION SHALL BE IN ADDITION TO EMPIRE’S OTHER RIGHTS AT LAW AND/OR EQUITY. EMPIRE SHALL BE UNDER NO OBLIGATION TO REFUND ANY FEES PAID BY YOU IN THE EVENT THAT YOUR ACCOUNT IS TERMINATED BY REASON OF ANY SUCH BREACH OR BREACHES.
EMPIRE MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER OTHER THAN THOSE EXPRESSLY MADE ABOVE, AS TO THE LEGALITY OR VALIDITY OF ANY RELEASE ASSOCIATED WITH AN IMAGE. EXCEPT AS PROVIDED ABOVE, THE IMAGE(S) ARE PROVIDED “AS IS.” EMPIRE, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, REPRESENTATIVES, DISCLAIM ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE SITE AND ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED HEREIN, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. USE OF EMPIRE’S SERVICES IS AT YOUR OWN RISK. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
EMPIRE GRANTS NO RIGHTS AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE USE OF ANY NAMES, TRADEMARKS, LOGOTYPES, COPYRIGHTED DESIGNS OR WORKS OF ART OR ARCHITECTURE DEPICTED IN ANY IMAGE. IT IS YOUR RESPONSIBILITY TO ASSURE THAT ALL NECESSARY RIGHTS, CONSENTS, OR PERMISSIONS THAT MAY BE REQUIRED FOR YOUR USE OF ANY IMAGES ARE OBTAINED.
EMPIRE DOES NOT REPRESENT OR WARRANT THAT IMAGES OR OTHER MATERIALS IN THIS SITE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. EMPIRE is not responsible for typographical errors or omissions relating to pricing, text, or other materials that are displayed on the Site. Furthermore, while Empire attempts to ensure your access and use of the Site is safe, Empire cannot and does not represent or warrant that this Site or its server(s) are free of viruses or other harmful components.
YOU UNDERSTAND THAT YOU SHOULD SEEK COMPETENT COUNSEL BEFORE USING IMAGES ON OR IN CONNECTION WITH ANY GOODS OR SERVICES OR FOR ANY OTHER COMMERCIAL PURPOSES.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR THE SERVICE, OR WITH ANY OF THE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE OR USE OF THE SERVICES. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EMPIRE ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, REPRESENTATIVES, ARE NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR OTHER INJURY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF EMPIRE’S SERVICES OR THE SITE, OR WITH THE DELAY OR INABILITY TO USE THE SITE, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF EMPIRE, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, REPRESENTATIVES, HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. EMPIRE’S AGGREGATE LIABILITY ARISING OUT OF THE TERMS OF THIS AGREEMENT WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100.00) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS.
IN THE EVENT THAT YOU USE FRAUDULENT CREDIT CARD INFORMATION TO OPEN AN ACCOUNT OR OTHERWISE ENGAGE IN ANY CRIMINAL ACTIVITY AFFECTING EMPIRE, EMPIRE WILL PROMPTLY FILE A COMPLAINT WITH www.ic3.gov, THE INTERNET CRIME COMPLAINT CENTER, A PARTNERSHIP BETWEEN THE FEDERAL BUREAU OF INVESTIGATION (FBI) AND THE NATIONAL WHITE COLLAR CRIME CENTER.
Effective May 25, 2015
