Welcome to www.photoshelter.com (the “Site”), where PhotoShelter, Inc. (“PhotoShelter”, “we”, “us” or “our”) provides various photography-related tools, services and resources that photographers and other users can use to store, display, market and distribute digital copies of their User Content (as defined below) (collectively with the Site, the “Services”). For clarity, the Services located on or accessible through the Site are solely intended for single-user accounts, and these Terms and Conditions only apply to the use of such single-user accounts. For businesses and entities that wish to have more than one user access PhotoShelter’s photography-related tools, services and resources, PhotoShelter also provides a multi-user photograph-management and distribution solution called “PhotoShelter Brands”, which is available at brands.photoshelter.com (PhotoShelter Brands). Multi-user and PhotoShelter Brands terms and conditions can be found here.

Please read these Terms and Conditions (collectively with PhotoShelter’s Privacy Policy and Copyright Policy, the “Terms“) fully and carefully before accessing, browsing or using any part of the Site or the Services because these Terms set forth the legally binding terms for any use of the PhotoShelter Site or the Services. By registering for and/or using the Services in any way, you are acknowledging that you agree to these Terms and all other operating rules, policies and procedures that we may publish (and update) from time to time through the Services, each of which is incorporated in these Terms by this reference. If you are entering into these Terms on behalf of an entity, you represent and warrant that you have the right, authority, and capacity to enter into these Terms on behalf of the entity you represent.

1. Applicability of Terms and Conditions.

a. These Terms apply to anyone who uses the Services in any manner, including to anyone who visits, browses, purchases, or downloads from the Site, or from an individual photographer’s PhotoShelter-hosted website (each, a “Photographer Site“).

b. Some services are accompanied by and subject to additional terms and conditions (“Supplemental Terms“). Supplemental Terms are incorporated herein by this reference, and your use of any Service that is governed by any Supplemental Terms will be deemed your acceptance and agreement to the applicable Supplemental Terms.

c. You are solely responsible for ensuring that these Terms and your use of the Services comply with all laws, rules and regulations applicable to you. The right to access the Services is revoked where these Terms or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation.

2. PhotoShelter for Photographers vs PhotoShelter for Brands The Services available on, or through, the Site are only for individual photographers (or individual photographers operating as business entities) and are not to be used by more than one individual per Account (as defined below). If you will have two or more individuals accessing the Services on your behalf (for example, as part of an organization, institution, business, or entity), you must register for a PhotoShelter Brands account. If you are unsure of whether your use qualifies for a single-user or PhotoShelter Brands account, please contact us at support@photoshelter.com. Terms for PhotoShelter Brands accounts are available here.

3. Eligibility. You represent and warrant that you are at least 13 years old. If you are under age 13, you may not use the Services. Additionally, if you are under age 18, you may only use the Services under the supervision and authorization of a parent or legal guardian that is at least 18 years old, who will be considered responsible for your conduct and the consequences of any such conduct. If you are a parent or legal guardian of a potential minor user, before authorizing any such use, please be warned that the Services may display content that some may find offensive. You must notify us immediately of any change in your eligibility to use the Services, breach of security or unauthorized use of your Account. We may, in our sole discretion, refuse to offer the Services to any person or entity and change our eligibility criteria at any time.

4. Registration. Although unregistered users may be able to access some parts of the Services, certain features may only be available to users who have registered for an account on the Services (an “Account“). To register, you must provide accurate and updated information for your Account. In particular, you shall not select or use as a username: (a) a name of another person with the intent to impersonate that person; (b) a name subject to any rights of a person other than you without appropriate authorization; or (c) a name that is otherwise offensive, vulgar or obscene. You are solely responsible for any activity that occurs on your Account and for keeping your Account password secure. You may never use another person’s Account without permission. Sharing Account information between multiple users, with or without the registered account-holder’s permission, is strictly prohibited.

5. Email, SMS and Text Messaging. As part of the Services, we may communicate with you by sending you SMS text messages or emails. Please note that text messaging fees may apply to the sending or receipt of SMS text messages. By registering for an Account, you hereby expressly consent to receiving SMS text messages from us relating to the Services. You may opt out of receiving SMS, text and email messages as described in our Privacy Policy, but some related notification features of the Services may not work properly if you do opt out.

6. Content.

a. Definition. For purposes of these Terms, “Content” means all information, data, text, photographs, videos, audio clips, written posts, comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. “Content” also includes all User Content (as defined below).

b. Notices and Restrictions. The Services contain Content from various sources, including us, our partners and users, and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. As members of the photography community, PhotoShelter strongly advocates for the respect of others’ intellectual property rights. Accordingly, you shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services. You also agree to abide by any notices, information, and restrictions on any User Content (as that term is defined below) that you access through the Services. In particular, if you are accessing or downloading any Photographs (defined below), you agree to respect and abide by the photographers’ copyright and any notices posted or agreements required by these photographers concerning your access to and use of their work.

c. Use License From PhotoShelter. Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display on your browser or device in connection with the Services) Content (excluding our users’ Photographs, as that term is defined below) solely for the purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us and, if applicable, the relevant copyright holder. Except as expressly permitted by us or the applicable copyright holder, you shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates these Terms or any third party right.

7. License Grants For User Content.

a. User Content Generally. All Content you provide (or contribute, add, create, upload, submit, distribute or post) (“Contribute“) to the Services is referred to as “User Content.” User Content refers to both “Photographs” and “Non-Photographic Content.” “Photographs” are any and all photographic or graphic works or other images you store, display or make available through the Services. All other User Content, whether User Content you contribute voluntarily (for example, text added to Photographs and galleries featuring Photographs, comments you make to blog posts, posts you contribute to forums or other public portions of the Services, or custom website pages that are created using PhotoShelter’s templates) or User Content we collect automatically from your usage of the Services (for example, analytic data or metadata), is referred to in these terms as “Non-Photographic Content“. We believe this distinction is important because we respect your intellectual property rights, especially in your Photographs, and we believe you should be able to grant a narrower license to your Photographs. For clarity, templates, layouts, or other arrangements of User Content (but not the User Content itself) are not considered User Content when they are made through tools offered through the Services, and shall remain the property of PhotoShelter or our licensors. User Content also does not include Feedback, which is defined and further described below.

b. You Retain Your Rights to Your Content. Most importantly, you continue to own your User Content and can use such User Content in any way you want (provided you do not grant any rights to the User Content that interfere with the rights and licenses you grant to us).

c. License to Your Photographs. In order for us to provide you with the Services, we need the rights to use your User Content in specific ways. The following license grants PhotoShelter these rights, solely in conjunction with the Services. For your Photographs, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable (solely to provide your Photographs to those third party service providers that you authorize us to do so) and transferable license to use, display, modify, crop, reformat, reproduce, distribute, and prepare derivative works of such Photographs, solely in connection with providing the Services. This license allows us to take actions such as creating thumbnails and other various sizes of the Photographs you list on your website, presenting your images in search results on the Site, allowing potential Purchasers (defined below) to browse your portfolio or online store, or to modify Photographs so that we can preview for you how they will look if you use one of our website templates. We have no right to use your Photographs in any manner that goes beyond providing the Services, and we claim no commercial rights to your Photographs themselves beyond these rights. If your images will appear in our independent marketing efforts, our team will ask permission beforehand.

d. License to Your Non-Photographic Content. In addition to the limited rights to use your Photographs as detailed above, to provide the Services, we also need rights to use other User Content you contribute. The license in this section gives us the ability to, for example, support and display image captions and gallery descriptions, your “About” page, other custom website content, and other text you contribute to your Photographer Site, the Site or the Services. We will exercise these rights only in connection with the Site, the Services and our (and our successors’ and assigns’) businesses. Therefore by providing any Non-Photographic Content, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit, in connection with the Services and our (and our successors’ and assigns’) businesses, your Non-Photographic Content, including for promoting and redistributing part or all of the Site or the Services (and derivative works thereof) in any media formats and through any media channels (such as third party websites and feeds), until you remove, or until we remove pursuant to your request or as otherwise set forth herein, such Non-Photographic Content from the Services; provided that this license shall survive to the extent such Non-Photographic Content is included in any existing promotional or marketing materials.

e. Public vs. Private Content. Certain User Content, including Photographs, can be designated either “Public” or “Private” through certain functionality on the Services. Additionally, certain portions of the Services are generally considered Public. By designating any of your User Content as “Public” or “Publicly searchable” or by posting User Content, including Photographs, to publicly viewable portions of the Services, such as your Photographer Site, through the search function at photoshelter.com, or on a “Lattice” board, you hereby do and shall grant other users of the Services (i.e. web site visitors) a non-exclusive, worldwide, royalty-free, perpetual license to access, display, and view such public User Content solely through the Site and/or the Services in connection with their use of the Services as permitted by these Terms. For clarity, you have ultimate control over whether User Content is designated Public or Private, and we will not alter the status of your User Content from Private to Public, unless dictated by you via the Services. This license conveys no rights to users of the Services (i.e. visitors to your website and ours) to use your Photographs in any manner that goes beyond the Services, and conveys no commercial rights to your Photographs themselves in any way beyond any rights additionally or specifically granted by you. The licenses contained herein will survive your termination of your Account or the Services.

f. Feedback. We appreciate our users’ interest in improving and expanding the Services. If you choose to send us content, information, ideas, suggestions or other materials relating to our Site, Services or business (“Feedback“), you hereby assign such Feedback to us, and you agree that PhotoShelter is free to use any Feedback, for any purposes whatsoever, including, without limitation, developing and marketing products and services, without any liability or payment of any kind to you.

g. Name and Trademarks. You hereby grant to PhotoShelter the right to use and publish your name, trademark, trade name, or other identifier in connection with identifying and attributing your Photographs and User Content and for advertising, publicizing, and promoting the Services (“Promotions”) in our sole discretion. However, we do not have any intention to use your identification information in Promotions against your wishes, so if you do not want your name to be used in connection with any Promotions, you may send a notice stating such to support@photoshelter.com. After receipt of your notice, PhotoShelter will remove your name from any current promotions, and will not include your name in future promotions that commence ten (10) business days or more after the day we receive your notice.

8. Availability of Content.

a. Our goal is to provide a service with outstanding uptime and reliability for photographers to upload, manage, and distribute content. Planned downtime and copyright claims against users may, however, cause us to make User Content unavailable (in addition to a specific user designating any User Content as private). Occasionally, circumstances may lead to some or all of the Services being unavailable for other reasons. Although we will try to keep the Services operating without interruption, we do not guarantee that any Content will be made available on the Site or through the Services.

b. We reserve the right, but do not have any obligation, to remove, block, edit or modify any Content in our sole discretion, at any time, without notice to you and for any reason, including upon receipt of claims or allegations from third parties relating to such Content, provided that we shall only edit or modify Photographs as provided in Section 7c.

9. Rules of Conduct.

a. You shall not (and shall not permit any third party to) either (1) take any action or (2) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that:

i. infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity (see our Copyright Policy);

ii. violates any local, state, national or international law or regulation or any contractual duty;

iii. is false, misleading, untruthful, inaccurate, or incomplete;

iv. is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, illegal or otherwise objectionable or inappropriate as determined by us in our sole discretion;

v. constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming“);

vi. contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;

vii. impersonates any person or entity, including any of our employees or representatives;

viii. includes anyone’s identification documents or sensitive financial information; or

ix. harms minors in any way, including, but not limited to, by violating child pornography laws or laws prohibiting the depiction of minors engaged in sexual conduct.

b. You also shall not (and shall not permit any third party to) violate or attempt to violate the security or operation of the Services or of our other systems or networks, including without limitation the following:

i. taking any action that imposes or may impose an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure or violates the terms of the subscription plan or account for which you registered, including without limitation by exceeding the applicable bandwidth limits or sharing Account information between multiple individuals;

ii. interfering or attempting to interfere with the Services or any activities conducted on the Services;

iii. bypassing, circumventing or attempting to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services);

iv. running any form of auto-responder or “spam” on the Services;

v. using software, devices, or other processes to “crawl” or “spider” any page of the Services;

vi. harvesting or scraping any Content from the Services;

vii. forging headers or otherwise manipulating identifiers in order to disguise the origin of any content transmitted through the Services; or

viii. otherwise taking any action in violation of our guidelines and policies.

c. You shall not (directly or indirectly) take any actions that violate our intellectual property rights or the intellectual property rights of any other parties, including without limitation the following:

i. deciphering, decompiling, disassembling, reverse engineering or otherwise attempting to derive any source code or underlying ideas or algorithms of any part of the Services (including any application), except to the limited extent applicable laws specifically prohibit such restriction;

ii. modifying, translating, or otherwise creating derivative works of any part of the Services; or

iii. copying, renting, leasing, timesharing, distributing, or otherwise transferring any of the rights that you receive hereunder.

d. We reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to:

i. satisfy any applicable law, regulation, legal process or governmental request;

ii. enforce these Terms, including investigation of potential violations hereof;

iii. detect, prevent, or otherwise address fraud, security or technical issues;

iv. respond to user support requests; or

v. protect the rights, property or safety of us, our users and the public.

10. E-Commerce Services.

a. Terms for Both Sellers and Purchasers.

i. Subject to the terms set forth herein and any applicable Supplemental Terms, PhotoShelter hereby grants to you a license to access and use the e-commerce tools made available on the Services (collectively, the “E-Commerce Services“) solely for the purpose of displaying, hosting, sharing, delivering, Selling, and Purchasing rights to Photographs or other applicable Content made available through the E-Commerce Services in accordance with any terms relevant thereto. For clarity, a “Purchase” or “Sale” through the E-Commerce Services refers to a purchase or sale of certain rights to or a physical print or product of the relevant Photograph or applicable Content, or the license of a digital download that includes limited usage rights. Unless otherwise expressly agreed to between the parties in writing, ownership in the actual Photograph or applicable Content remains with the original copyright holder, even after a Sale on the Services. A user who “Purchases” or “Sells” Content is referred to as a “Purchaser” or “Seller“, respectively.

ii. PhotoShelter reserves the right to change the manner in which it offers Services for the licensing of Photographs from time to time at its sole discretion.

iii. If you either Purchase or Sell Content through the Services, you hereby authorize PhotoShelter to disclose your contact and relevant billing information to the other party in the transaction as well as any Third Party Service Provider (defined below) engaged by PhotoShelter to provide services in connection with such transaction, to the extent necessary or desirable to process and facilitate the transaction, such as a print vendor responsible for the automated fulfillment of e-commerce orders from your website.

b. Additional Terms for Sellers.

i. If you will be Selling Photographs through the Services, you will need to obtain a merchant account from one of the billing services supported by the Services (currently PayPal, Stripe, and Authorize.net) (each, a “Billing Service“). Funds can only be collected through one of our authorized Billing Services. You agree and acknowledge that use of such Billing Services may be subject to additional terms, which you are responsible for reviewing and complying with. Please note that we may in our sole discretion, change the Billing Services we support from time to time.

ii. You agree and acknowledge that you are the merchant of record. This means that purchasers will transact directly with you, not with PhotoShelter.

iii. You agree to pay PhotoShelter a fee for each completed transaction that is initiated through the Services, which is applied to your monthly statement (“Transaction Fee“). The Transaction Fee varies by Account tier and can be found here, the terms of which are incorporated herein by this reference.

iv. In the event you choose to use one of our third party fulfillment partners, you will also be charged for the wholesale cost of printing and shipping, according to the fee schedule available here.

v. You will have the sole authority to set and control the prices for any Photographs you are Selling through the Services. PhotoShelter will never alter any prices of a Seller’s Photographs. Therefore, you acknowledge that you are solely responsible for any and all prices of Photographs you are Selling and that PhotoShelter takes no responsibility with respect thereto. You further acknowledge that when setting the price for any Photographs you are Selling, you have taken into account the Transaction Fee that will be assessed by PhotoShelter as set forth herein.

vi. You represent and warrant that you have all rights and licenses necessary to Sell and make such Photographs and/or applicable Content available for Purchase through the E-Commerce Services, and that you have obtained and have copies of model or other applicable releases from all individuals, locations or other subjects depicted in your Content as well as voluntary consent from all necessary parties for the publication and/or dissemination of their likeness and/or property for all legal purposes.

vii. You agree and acknowledge that your Photographs and/or applicable Content will be licensed to Buyers in accordance with the license arrangement you designate for such Photograph and/or applicable Content when making such Photograph available for Purchase (“License Agreement“). For additional information on the various licenses available through the E-Commerce Services, please visit this article.

viii. You hereby irrevocably waive all moral rights in your Photographs. This means that once you license Photographs and/or applicable Content to someone through the Services, you cannot control how they further use the Photographs and/or applicable Content as long as they stay within the scope of the applicable License Agreement.

c. Additional Terms for Purchasers (including clients of PhotoShelter users).

i. By Purchasing a Photograph, you hereby agree to access, display, distribute or otherwise use such Photograph only as expressly authorized by and in accordance with the terms set forth in the License Agreement designated for such Photograph and in no other manner and for no other purposes.

ii. You hereby agree and acknowledge that any Photograph you Purchase is the sole responsibility of the Seller and Purchaser, and not PhotoShelter, and PhotoShelter makes no representations, warranties, or guaranties to you regarding the Photograph, including without limitation regarding the quality, authenticity, legality, appropriateness or accuracy of such Photograph.

11. Downloading User Photos. This term applies to visitors and clients of PhotoShelter users, regarding the image download capabilities available to you via the PhotoShelter user’s Photographer Site. If you are not directly purchasing or licensing a Photograph using the PhotoShelter E-Commerce Services, but rather downloading a Photograph or other User Content from a PhotoShelter user in another manner, you acknowledge that the ability to download does not constitute a grant of usage rights. You also acknowledge that all usage restrictions still apply to you, and you agree that you will still fully comply with the photographer’s copyright, usage restrictions, and any other terms of any direct arrangements you have made with the photographer regarding usage of the User Content, including any compensation terms. If you are unclear about your usage rights to Photographs downloaded directly from a Photographer Site, please contact the photographer directly via the contact information link on their respective website.

12. Security Features. PhotoShelter employs a number of industry standard or better technology to restrict the ability of other users to make high resolution copies of Content on the Services (such as the Watermark described below). However, we cannot guarantee, and make no representations or warranties that any Content will not be copied or otherwise exploited without your consent. We also cannot control how a party will use your Content after you have authorized a Purchase, and therefore we cannot make any representations, warranties or guarantees about your Content outside of our performance of the Services.

13. Payments and Billing.

a. Paid Services. Certain of our Services, or certain of the services provided in connection with the Services by our third party business partners, may be subject to payments now or in the future (the “Paid Services“). Please see our Pricing page for a description of the current Paid Services. You acknowledge that all prices are subject to change at PhotoShelter’s sole discretion. Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of this Agreement.

b. Billing. We use a third-party payment processor (the “Payment Processor“) to bill you through a payment account linked to your Account (your “Billing Account“) for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. By choosing to use Paid Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms, and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method“). You agree to make payment using that selected Payment Method. Although we are not responsible for error by the Payment Processor, we reserve the right to correct any errors or mistakes that the Payment Processor makes, even if the Payment Processor has already requested or received payment. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.

c. Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.

d. Recurring Billing; Subscription Services. You can pay for your Account subscription, or other Paid Services that may have such options available, with a monthly or annual payment, on a recurring basis. All Services for which recurring payment is an option are referred to as the “Subscription Services.” Your exact recurring payment amount may vary as a result of charges such as your authorized storage add-ons (billed monthly or annually, separate from your primary account), e-commerce sales transaction fees, or bandwidth overages associated with your Account. By choosing a recurring payment plan, you acknowledge that such Subscription Services have a recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. Subscription Services automatically renew for successive renewal periods of the same duration as the original subscription term, at the then-current non-promotional rate, unless and until you cancel the Subscription Service. You can access and view invoices for your recurring payments for certain Subscription Services through your Account. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD OR SUBSCRIPTION SERVICE, GO TO YOUR ACCOUNT SETTINGS HERE. Any such change or termination will take effect after your then-current term expires. We do not provide prorated refunds for any termination or cancellation, even if during a term.

e. Current Information Required. You must provide current, complete and accurate information for your Billing Account. You must promptly update all information to keep your Billing Account current, complete and accurate, and you must promptly notify us or our payment processor if your Payment Method is canceled or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your user name or password. Changes to such information can be made here. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.

f. Change in Amount Authorized. Except as provided herein, if the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. For clarity, Transaction Fees assessed in connection with the E-Commerce Services will vary on a monthly basis, based on the number of Photographs Sold during the preceding calendar month.

g. Reaffirmation of Authorization. Your non-termination or continued use of a Paid Service reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service.

h. Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Paid Service (a “Free Trial”) must be used within the specified time of the trial. Some Free Trials may require you to input your credit card or other Payment Method, while other Free Trials may be available without such requirement. If you are using a Free Trial that does not require you to specify a Payment Method, and you do not enter Payment Method information after the Free Trial period ends, we will treat that as a cancellation, and we will not save your uploaded Photographs or website designs after the Free Trial period ends. For Free Trials that require you to input Payment Method information, you must stop using the applicable Paid Service before the end of the trial period in order to avoid being charged for that Paid Service. If you cancel prior to the end of the trial period and are inadvertently charged for a Paid Service, please contact us at support@photoshelter.com.

14. Watermark. In addition to other security features we offer through the Services, PhotoShelter offers the option to include a visual overlay that is placed upon all publicly viewable Photographs, adding an important layer of image security (“Watermark“). You will not see Watermarks on your Photographs in your image browser on the Services (“Image Browser“), only on your public website (and private client galleries). Watermarking is a global setting, meaning that if enabled, all publicly viewable images will display the Watermark, except when the Photographs are added to a Lattice board, as further detailed below. However, you may disable Watermarking for specific galleries – including on the portfolio portion of your Photographer Site – from within your Image Browser, if you so choose. More information about Watermarks can be found here.

15. Lattice. PhotoShelter’s Lattice feature is designed to drive more traffic and visibility for PhotoShelter Photographs by enabling PhotoShelter staff members, guests, visitors to the Site and other users to search the full database of Users’ publicly searchable images and create, curate and contribute to image showcases (“boards“) that are organized by themes (e.g. “Fall leaves” or “U.S. Open”). Lattice boards can only be created using only images that are publicly viewable. In order to encourage a rich and interesting variety of images on Lattice boards, we allow users to create or contribute to Lattice boards using any images that are publicly viewable on the Services, including those that have been contributed by other users. Accordingly, by making Photographs publicly viewable on the Services, you acknowledge and agree that such Photographs may become a part of Lattice boards, including based on someone else’s selection of the Photograph, and that such Photograph may be shared as part of Lattice boards when the Lattice boards are displayed, which may include display outside of the Services due to the public nature of the Lattice boards. As a user of the Services, you may also add your Photographs to any Lattice board’s “stream”. Please note that Lattice board thumbnail images are currently displayed without a Watermark in order to provide a consistent and aesthetically pleasing visual experience for curators and viewers. If you do not want your Photographs to be included in Lattice boards or streams, please do not make them publicly searchable. You may also opt-out of having your Photographs included in Lattice boards entirely, from inside your Account settings. As with all other parts of PhotoShelter, unauthorized usage of any Photographs made available through the Lattice feature is strictly prohibited.

16. Third Party Services. The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. PhotoShelter may also allow certain third parties (“Third Party Service Providers“) to provide services (“Third Party Services“) to you through the Services. The inclusion of any such link does not imply our endorsement or any association between us and their operators. When you access third party resources on the Internet or purchase or use any Third Party Services, you do so at your own risk. These other resources are not under our control, and you acknowledge that any such transaction is solely between you and the applicable Third Party Service Provider, and we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource. Please review the policies of any Third Party Services you share information with or through for additional information about how they may use your information or your User Content.

17. Sharing Content via Social Media. Sometimes the Services will give you the opportunity to share Content with others, including through your social networks (“Third Party Accounts“). We will clearly identify the Content you are authorized to redistribute and the ways you may redistribute it, usually by providing a “share” button on or near the Content. If you share information from the Services with others through your Third Party Accounts, you authorize PhotoShelter to share that information with the applicable Third Party Service and such relevant users. Please note that if you redistribute Content not owned by you, you must be able to edit or delete any Content you redistribute, and you must edit or delete it promptly upon our request.

18. Referrals. You may be eligible to receive a referral credit (“Referral Credit“) for referring other users (“Referral“) to the Services. You can only be eligible for a Referral Credit if such Referral (a) did not previously have an Account, and (b) identifies you as the sole referral source in accordance with the instructions provided during the Referral’s registration process (making such Referral, a “Qualified Referral“). You shall receive a Referral Credit for any Qualified Referral in the amount specified here. You will receive the Referral Credit on the billing date for your Account that follows the Qualified Referral’s second full month of service (the “Credit Issue Date“). Your Referral Credit will be automatically applied to pay any charges to your Account incurred after the Credit Issue Date. If you do not use the Referral Credit within the twelve (12) month period following the Credit Issue Date, the Referral Credit will expire. Referral Credits will also automatically expire if your Account is terminated for any reason. Referral Credit are not redeemable as cash and may not be used to pay any past due balance; you must pay in full your past due balance and return your account to good standing in order to redeem your Referral Credits. If you are using a Free Trial, you can collect Referral Credits but may only use them if and when you transfer to a paying account. PhotoShelter reserves the right to change any aspect of the referral program at any time, including, without limitation, the redemption value of any Referral Credits that have not already been issued. We reserve the right to suspend your right to receive Referral Credits or to not issue you a Referral Credit if you have violated any of these Terms.

19. Termination and Cancellation. Our goal is to build a large and active community of people who are as passionate about photography as we are. Therefore, we try to avoid terminating anyone’s access to the Services and will rarely do so. We will usually only exercise our right to terminate an Account when a user is in violation of these Terms, especially if a user is infringing on another user’s, or our, intellectual property rights. However, since we may not be able to predict all the events that may require termination, we also reserve the right to terminate or suspend an Account with or without cause and/or without notice, and termination may be effective immediately. If your use of the Services violates the terms in this Agreement, is improper, substantially exceeds or differs from normal use by other users, violates any Account usage restrictions (such as through use of a Single-User Account by an entity with multiple users), or otherwise involves fraud or misuse of the Services or harms our interests or those of another user of the Service, we reserve the right to terminate or suspend your use of the Services. Termination may result in the forfeiture and destruction of all information associated with your membership, including your User Content. If you wish to cancel or delete your Account, you may do so either directly through the Services or through a request made to one of our employees. We do not provide any refunds in the event of termination or cancellation.

20. Termination for Nonpayment. The Payment Method you place on file in the Billing Info section of your Account is the Payment Method we will charge for any and all charges. It is important to keep your Payment Method information up-to-date to avoid any service interruptions for nonpayment. When this Payment Method is due to expire, we may send numerous account reminders (if necessary) to the email address we have on file for you in an attempt to avoid any service interruption. If this Payment Method is declined when payment is due (“Nonpayment”), we may provide you with seven (7) days to update your Billing Account with current, complete, and accurate information, without any interruption in service. If we have not received payment from you within eight (8) days of Nonpayment, your Account will immediately enter a lockout state, during which:

1. You will be unable to access the Admin Area of your Account.

2. If e-commerce is set up on your website, cart checkout will be disabled, so buyers will not be able to purchase your images on your website.

3. Your website will continue to display, with the exception of e-commerce, if set up on your website, for which your cart checkout will be disabled.

After twenty-six (26) days of Nonpayment, your Account will be suspended, during which:

1. Your website will be disabled.

2. You will continue to be locked out of the Admin Area of your Account and e-commerce will remain disabled.

If at any time within one hundred and eighty (180) days of Nonpayment, we receive through your Billing Account the full amount of payment due, we will restore your Account access and the above disabled features.After one hundred and eighty (180) days of Nonpayment (the “Lockout Period”), your Account will be terminated and any images stored with PhotoShelter will be deleted.Email notifications may continue throughout the Lockout Period in an effort to keep you abreast of any changes to your Account.

21. Effect of Cancellation or Termination. Any fees paid hereunder are non-refundable. If, at the time of your cancellation, you still owe wholesale fees or transaction fees from completed image sales, we reserve the right to charge your credit card on file, post-cancellation. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability. We are happy to provide you with a copy of your Photographs upon your termination or cancellation of your Account, at your request, as long as you (a) satisfy the entire outstanding balance on your Account, including any fees or other expenses charged by PhotoShelter at the time of such termination for creating and distributing such copy of your Photographs, and (b) are not in violation of any of the Terms. Although PhotoShelter will make commercially reasonable efforts to store and preserve the material archived on the Services, you acknowledge and agree that PhotoShelter is not responsible or liable in any way for the failure to store, preserve or access Photographs or other User Content you transmit or archive on the Services. You are strongly urged to take measures to preserve copies of any data, material, content or information you post or upload on the Services.

22. Warranty Disclaimer.

a. The Services act as a passive conduit for the archival, display, access, delivery, Purchase, and Sale of Photographs, digital images, information and other data. PhotoShelter may, but has no obligation to, screen or monitor such images, information, data or other content or any of the activity occurring on the Services. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. All User Content is the sole responsibility of the person who originated such User Content. YOU HEREBY ACKNOWLEDGE AND AGREE THAT ANY TRANSACTION MADE OVER THE SERVICES WILL BE BETWEEN YOU AND THE APPLICABLE USER OR OTHER INDIVIDUAL OR ENTITY AND THAT PHOTOSHELTER IS NOT AND WILL NOT BE A PARTY TO ANY SUCH TRANSACTION. YOU HEREBY AGREE TO INDEMNIFY AND HOLD HARMLESS PHOTOSHELTER AND THE PHOTOSHELTER INDEMNITEES AGAINST ANY CLAIM OR LOSS ASSOCIATED WITH ANY TRANSACTION RELATING TO YOUR POSTED CONTENT OR YOUR USE OF THE SERVICES.

b. We have no special relationship with or fiduciary duty to you. You release us from all liability for you having acquired or not acquired Content through the Services. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services.

c. You shall and hereby do waive California Civil Code Section 1542 or any other similar law of any jurisdiction, which says in substance: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

d. THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE ON OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.

23. Informational Purposes. The Content and information available through the Services published by PhotoShelter are intended solely for informational purposes and not as a substitute for professional services or advice. We cannot guarantee the accuracy or timeliness of any Content or information made available through the Services.

24. Indemnification. You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives (the “PhotoShelter Indemnitees“) from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to, the Services, Content, Photographs or otherwise from your User Content, violation of these Terms, or infringement by you, or any third party using your Account or identity in the Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.

25. Limitation of Liability. IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF $100.00.

26. Governing Law and Jurisdiction. These Terms shall be governed by and construed in accordance with the laws of the State of New York, including its conflicts of law rules, and the United States of America. You agree that subject to Section 27, any dispute arising from or relating to the subject matter of these Terms shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of New York County, New York.

27. Class Action Waiver – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.

a. Arbitration. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS, YOUR USE OF THE SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION IN NEW YORK, NEW YORK UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court’s rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by JAMS. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.

b. Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this section will be null and void. This section will survive the termination of your relationship with us.

28. Modification. In an effort to deliver the best service experience possible, we are constantly changing our Services. We reserve the right, in our sole discretion, to modify or replace any of these Terms, or change, suspend, or discontinue the Services (such as the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may stop providing specific features entirely, or introduce new limits to features, at any time. We know that Users use and rely on many different PhotoShelter features, so if we discontinue a feature, where reasonably possible, we will give you reasonable advance notice. Your continued use of the Services following notification of any changes to these Terms or features constitutes acceptance of those changes.

29. Miscellaneous.

a. Entire Agreement and Severability. These Terms are the entire agreement between you and us with respect to the Services, including use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.

b. Force Majeure. Neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control (except for payment of any fees due hereunder), such as mechanical, electronic or communications failure or degradation.

c. Assignment. These Terms are not assignable, transferable or sublicensable by either party except with the prior written consent of the other party; except that we may assign, transfer or delegate any of our rights and obligations hereunder without consent to any successor to all or substantially all of our business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise).

d. Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect.

e. Notices. Unless otherwise specified in these Terms, all notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to legal@photoshelter.com for PhotoShelter, and we will send electronic notices to you, when applicable, to the email address we have on file for you.

f. No Waiver. Neither party’s failure to enforce any part of these Terms or exercise any rights hereunder shall constitute a waiver of such party’s right to later enforce that or any other part of these Terms or exercise that or any other right. Waiver of compliance in any particular instance does not mean that the waiving party will waive compliance in the future. In order for any waiver of compliance with these Terms to be binding, it must be in a writing provided by one of the waiving party’s authorized representatives.

g.Interpretation. The section and paragraph headings in these Terms and the sidebar summary of these Terms are for convenience only and shall not affect their interpretation. Any use of “including” “for example” or “such as” in these Terms shall be read as being followed by “without limitation” where appropriate.Contact. You may contact us at PhotoShelter, Inc., 111 Broadway, 19th Floor, New York, NY 10006

Effective Date of Terms and Conditions: November 9, 2015

PLEASE READ THIS PHOTOSHELTER BRANDS ACCOUNT SERVICE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE USING THE PHOTOSHELTER BRANDS DIGITAL ASSET MANAGEMENT SERVICES, WHICH ARE OWNED AND OPERATED BY PHOTOSHELTER, INC. (“PHOTOSHELTER”). BY CLICKING THE “SUBMIT” BUTTON ON AN ONLINE ORDER FORM OR SIGNING AN ORDER FORM WHICH REFERENCES THIS AGREEMENT (EACH, AN “ORDER FORM”), OR BY USING THE SERVICES DESCRIBED HEREIN IN ANY MANNER, YOU AND THE ENTITY YOU REPRESENT (“CLIENT”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS, AND YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CLIENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. CAPITALIZED TERMS NOT DEFINED HEREIN SHALL HAVE THE MEANING SET FORTH ON THE ORDER FORM WHICH REFERENCES THIS AGREEMENT.

1. DEFINITIONS.

“PhotoShelter Brands” means the PhotoShelter multi-user digital asset management software and tools provided by PhotoShelter for purposes such as posting, archiving, editing, managing, organizing, distributing, accessing and/or selling digital copies of Posted Content, and all software, interfaces, tools, utilities, templates, forms, and other technologies (and any related intellectual property) relating thereto, excluding Posted Content.

“Posted Content” means photographs or other content provided by Client through the Services.

“Site” means PhotoShelter.com.

“Services” means the PhotoShelter Brands service and any other services provided by PhotoShelter on the Site or pursuant to any Order Form.

“Confidential Information” shall mean information disclosed by either Party to the other Party, including but not limited to the terms and conditions of this Agreement, trade secrets of either Party, any information relating to either Party’s product plans, designs, ideas, concepts, costs, prices, finances, marketing plans, business opportunities, personnel, research, development or know-how and any other technical or business information of either Party.

2. PHOTOSHELTER SERVICES; SITE OPERATION.

2.1. Services. PhotoShelter shall use commercially reasonable efforts to operate the Services for Client in accordance with the applicable Order Form. Subject to the terms and conditions of this Agreement, PhotoShelter grants Client a non-exclusive, non-transferable license to use and access the Services solely for (a) Client’s internal business purposes and (b) to display, sell and deliver Client’s images on the Services to Client’s Registered Users (defined below) in accordance with this Agreement.

2.2. Access and Account Setup. Initial registration will be performed manually by a designated PhotoShelter Client Services representative. As part of the implementation process, Client will identify an administrative user name and password that will be used to set up Client’s account for the Services, and Client will need to register one or more individuals as an Account Administrator. Accounts and passwords may be used only in accordance with the terms and conditions of this Agreement. To the extent legally permitted, (a) Client shall be responsible for the acts or omissions of any person who accesses the Services using passwords or access procedures provided to or created by Client and (b) Client hereby releases PhotoShelter from any and all liability concerning such transactions or activity. Client agrees to notify PhotoShelter immediately of any actual or suspected loss, theft or unauthorized use of its or its Registered Users’ (defined above) account or password.

2.3. Availability. PhotoShelter will use commercially reasonable efforts to ensure that PhotoShelter Brands is available 24 hours a day, 7 days a week. PhotoShelter reserves planned outages of the Services, especially those requiring downtime, for purposes such as large scale system upgrades and maintenance. PhotoShelter will notify Client as soon as reasonably practicable of any unplanned outages, and with a minimum of 72 hours before planned outages.

2.4. Site Service and Technical Support. Where needed, PhotoShelter will provide routine phone support to Account Administrators and Editors, but not to Registered Users, in respect of use of the Services during PhotoShelter’s business hours of Monday through Friday 9:00AM ET to 6:00PM ET, excluding public holidays in the United States. Client is solely responsible for providing support to its Registered Users.

2.5. Limitations. PhotoShelter will not be responsible or liable for any failure in the Services resulting from or attributable to (a) Client Posted Content; (b) failures in telecommunications, network or other service or equipment outside of the facilities used to host the Services; (c) Client’s or any third party’s products, services, negligence, acts or omissions; (d) any cause beyond PhotoShelter’s reasonable control; or (e) scheduled maintenance in accordance with the terms herein (collectively, “Downtime Exclusions”).

2.6. Modifications. PhotoShelter reserves the right to modify or discontinue any Services (in whole or in part) at any time, provided that PhotoShelter will use commercially reasonable efforts to give thirty (30) days’ prior notice to Client (via email or through the Service) of material changes to the core Services, and further provided that in the event such modification or discontinuance materially reduces the functionality of the Services used by Client in accordance with this Agreement, Client may terminate this Agreement upon at least fifteen (15) days’ prior written notice to PhotoShelter.

2.7. Backups. Although PhotoShelter uses industry standard methods to store and preserve Posted Content, including performing backups of data in near real-time and by providing geographic server redundancy in multiple locations, including without limitation Client Posted Content, it is always a best practice to backup all important data. Therefore, PhotoShelter strongly encourages Client to perform regular backups of Client’s Posted Content, and Client acknowledges and agrees that PhotoShelter is not responsible or liable in any way for the failure to store, preserve or access Posted Content or other materials that Client transmits, stores, archives or otherwise makes available on or through the Services.

2.8. Content Removal. PhotoShelter has no obligation to screen or monitor any images, information or data for any purpose, including without limitation any Posted Content or any other content provided by users or third parties. However, if PhotoShelter becomes aware of or has reason to believe that Client or any of Client’s Posted Content is violating the terms and conditions contained herein or elsewhere on the Services, PhotoShelter, in its sole discretion, may remove and/or delete the applicable Posted Content, suspend and/or terminate Client’s and/or Client’s Registered Users’ access to the Services, and/or pursue any other remedy or relief available to PhotoShelter under equity or law.

2.9. Copyright. PhotoShelter handles copyright infringement claims in accordance with its Copyright Policy available at http://www.photoshelter.com/support/copyright.

2.10. International Access. Some jurisdictions may prohibit or restrict the download, storage, display or viewing of certain images or content or may otherwise limit use of or access to the internet and web-based services, and in such cases, PhotoShelter cannot guarantee that these jurisdictions will permit the use of or access to the Site, Services or any content thereon. Client and all Registered Users are responsible for compliance with the laws of the applicable jurisdiction in which such Client or Registered Users access the Site or Services. To the extent the Site, Services and content can be legally accessed, PhotoShelter uses a global Content Delivery Network (CDN) to ensure they can be accessed and viewed anywhere around the world in accordance with local expectations for internet speed. Furthermore, the Site and the Services are hosted on computer servers in the United States, and therefore, Client’s information may be processed and stored in the United States. Client’s use of the Sites or the Services or Client’s submission of any information, including without limitation any personally identifiable information, to PhotoShelter will constitute Client’s consent to the transfer of Client’s information to PhotoShelter’s servers and the use and disclosure of such information in compliance with United States laws, rules and regulations.

3. LICENSEES AND USER OBLIGATIONS.

3.1. License to Posted Content. Client owns, and as between Client and PhotoShelter, will continue to own, all Posted Content. Client hereby grants and agrees to grant PhotoShelter a non-exclusive, royalty-free, fully paid up, sublicensable, worldwide right and license to use, reproduce, modify, display, perform, distribute, and create derivative works of the Posted Content solely in connection with PhotoShelter’s operation of the Services and according to the Client’s specified visibility and access permission controls, as indicated using the features and functionality made available on the Services. This license allows PhotoShelter to take actions such as creating thumbnails and other various sizes of the images that Client posts and lists on the Site or through the Services, presenting images in search results on the Services, allowing Registered Users to browse image collections, or modifying Posted Content so that PhotoShelter’s system can fulfill image download requests in multiple desired sizes to Client’s approved Registered Users. PhotoShelter claims no right to use Posted Content in any manner that goes beyond providing the Services, and PhotoShelter claims no commercial rights to Posted Content.

3.2. Registered Users. Client will use the Services to distribute Posted Content to only parties which Client approves (“Registered Users”). Client can choose to grant Registered Users access to Posted Content by: (1) providing each Registered User with a username and password to access the Posted Content; (2) password-protecting Client’s gallery on the Services that contains the Posted Content and sharing the password with Registered Users to whom Client wishes to grant access or (3) designating the Posted Content as publicly viewable or downloadable by anyone, using the applicable feature on the Services (in both cases any end user who downloads or accesses such Posted Content shall constitute a Registered User). Only Client-appointed Account Administrators and Editors may set up new Registered Users via the Services for access to Client Posted Content. Client will check and update the Registered User access permissions regularly to ensure such permissions remain accurate and complete. PhotoShelter shall have no responsibility or liability for (a) Client’s failure to maintain or update Registered User authorization or (b) any unauthorized use, sharing, or disclosure of any passwords provided to Registered Users.

4. Provisions for Selling Content via the PhotoShelter Multi-User Account

4.1. Selling Content. Client may elect to offer a portion or all of its Posted Content for licensing or sale as prints and products (Client’s “Offered Content”). In order to post Offered Content, Client will need to obtain a merchant account from one of the billing services supported by the Services (each a “Billing Service”), such as PayPal, Stripe, TouchNet or Authorize.net. Please note that the Billing Services supported by the Services may be changed from time to time at the sole discretion of PhotoShelter, provided that PhotoShelter will notify Client if PhotoShelter stops supporting the Billing Service currently in use by Client in connection with the Services. With respect to each image contained in Client’ Offered Content, Client will need to select from a list provided by the Services (a) the category of rights being offered for sale, and (b) the price for each such category of rights.

4.2. Fees. In the event this sales capability is activated, Client agrees to pay PhotoShelter a fee of 8% of all completed purchasing transactions that are initiated through the Services (“Transaction Fee”), which is applied to Client’s monthly invoice. In the event that Client chooses to use one of PhotoShelter’s third party fulfillment partners, Client will also be charged for the wholesale cost of printing and shipping, according to the fee schedule available inside the Client account for the chosen third party fulfillment partner. PhotoShelter reserves the right to change the Transaction Fee at any time, upon prior notice to Client. Wholesale costs for printing and shipping may vary over time, and PhotoShelter will provide the Client with at least 30 days notice when third party prices change.

5. PROVISIONS FOR OPTIONAL AI AUTO-TAGGING VIA THE PHOTOSHELTER BRANDS ACCOUNT.

5.1 Optional Add-On Feature. Upon Client’s request and as agreed upon by the parties in an Order Form, PhotoShelter shall utilize Third Party Services, or other software, tools and technologies, including automated processing tools and image-recognition technologies, designed to apply to the Posted Content labels, tags, keywords, or other marks identifying a particular individual, group, location, event, date, time period, subject matter, topic, theme, or other feature or content (the “Auto-Tagging Services”).

5.2 Fees. The Auto-Tagging Services can be activated on request through PhotoShelter Customer Success representatives and entering into an Order Form for the Auto-Tagging Services. In the event the Auto-Tagging Services are activated, Client agrees to pay PhotoShelter an additional fee for the Auto-Tagging Services in the amount specified in the applicable Order Form, which shall be applied to Client’s monthly or annual invoice, as applicable. PhotoShelter reserves the right to change the fees for Auto-Tagging Services at any time, upon prior notice to Client. If PhotoShelter does not receive a request from Client to deactivate the Auto-Tagging Services within 30 days of such notice, Client shall be deemed to have accepted such changed fees. Where applicable, a one-time professional service setup fee for the Auto-Tagging Services may be owed by Client in the amount and at the time specified in the applicable Order Form. Setup fees and annual fees for Auto-Tagging Services are non-refundable.

5.3 Client Representations and Warranties for Auto-Tagging Services. Client represents and warrants that Client shall use the Auto-Tagging Services solely for lawful purposes and in strict compliance with all applicable state, federal or foreign law(s), rule(s) and regulation(s), including without limitation those related to making decisions based solely on automated processing, including profiling.

5.4 Client acknowledges and agrees that:

• PhotoShelter may utilize Third Party Service Providers to perform the Auto-Tagging Services.
• The labels, tags, keywords, or other marks identifying a particular individual, group, location, event, date, subject, topic, theme, or other feature or content (the “Auto-Tags”) will not be merged to industry standard IPTC fields and, as such, will only be accessible for Posted Content available and accessed on or through the Services, unless otherwise requested by Client and agreed to by PhotoShelter prior to removal of such Posted Content by Client from the Services.
• PhotoShelter or the applicable Third Party Service Provider may utilize Posted Content that is subject to the Auto-Tagging Service to create Derived Data. “Derived Data” means data elements derived from Posted Content via mathematical, logical or other types of transformations. Derived Data will be fully anonymized and aggregated, such that it is not possible to identify Client, or the subject(s) of any of the Posted Content. Derived Data will be the property of PhotoShelter or its applicable Third Party Service Provider. PhotoShelter or its Third Party Service Provider may use Derived Data for product improvement, algorithm training and other internal purposes.
• The Auto-Tagging Services are provided “AS IS” and Client’s use is at its own risk. PhotoShelter does not and cannot guarantee the accuracy or completeness of any Auto-Tags made available by or to Client in connection with the Auto-Tagging Services.
• PhotoShelter may discontinue the Auto-Tagging Services at any time in PhotoShelter’s sole discretion.

6. REPRESENTATIONS AND WARRANTIES.

6.1. General. Each party represents and warrants that (a) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (b) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (c) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.

6.2. By Client. Client represents and warrants that (a) Client owns all rights, title and interest in and to the Posted Content, or has otherwise secured all necessary rights in the Posted Content as may be necessary to permit the access, use and distribution thereof as contemplated by this Agreement or as otherwise authorized by Client through the Services, including without limitation to Registered Users and (b) the Posted Content does not (i) include any virus, worm, Trojan horse or other harmful, malicious or disabling code or device or that is designed to damage or allow unauthorized access to the Site or Services (“Malware”); (ii) violate, infringe, misappropriate or otherwise interfere with any patent, copyright, trademark, trade secret, right of privacy or publicity, or any other intellectual property, proprietary or any other right of any person or entity; (iii) contain any material which is unlawful, harmful, abusive, hateful, obscene, threatening, libelous or defamatory, false or inaccurate or otherwise objectionable; (iv) harm minors in any way, including, but not limited to, by violating child pornography laws, child sexual exploitation laws or any laws prohibiting the depiction of minors engaged in sexual conduct; or (v) violate any applicable federal, state, local or international law.

6.3 By PhotoShelter. PhotoShelter represents and warrants that (a) it will perform the Services in a professional and workmanlike manner; (b) the Services will perform substantially in accordance with any documentation provided by PhotoShelter to Client; (c) it will use industry standard methods to scan the Services and Content for Malware and to eradicate any found Malware and (d) it will perform its obligations in compliance with all applicable laws. In the event of any breaches of the warranties set forth in this Section 6.3, PhotoShelter’s sole responsibility, and Client’s sole remedy, will be, at PhotoShelter’s discretion, to either (i) re-perform the Services so that they conform or (ii) refund the Client a pro-rated portion for any fees paid by Client for the non-conforming Services.

7. PROPRIETARY RIGHTS.

7.1. Client. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted, and Client (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to Posted Content.

7.2. PhotoShelter. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted, and PhotoShelter (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Services, the Site and all information, data, materials and content related thereto (excluding Posted Content), and all modifications and derivative works thereof (again, excluding modifications and derivative works of Posted Content), as well as all PhotoShelter trademarks, names, and logos, and all rights to patent, copyright, trade secret and other proprietary or intellectual property rights.

7.3. Restrictions. Except as expressly permitted in this Agreement, Client shall not directly or indirectly (a) use any of PhotoShelter’s Confidential Information (defined above) or proprietary information to create any service, software, documentation or data that is similar to any aspect of the Services; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms or trade secrets therein; (c) encumber, sublicense, transfer, rent, lease, time-share or use any portion of the Services in any service bureau arrangement or otherwise for the benefit of any third party; (d) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services; (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (f) permit any third party to engage in any of the foregoing proscribed acts.

7.4. Feedback. PhotoShelter appreciates all of our users’ interest in improving and expanding the Services. If Client chooses to send to PhotoShelter (through any channel) any content, information, ideas, suggestions or other materials relating to the Site, Services or PhotoShelter’s business (“Feedback”), Client hereby assigns such Feedback to PhotoShelter, and Client agrees that PhotoShelter is free to use any Feedback, for any purposes whatsoever, including, without limitation, developing and marketing products and services, without any liability or payment of any kind to Client.

8. PAYMENT; FEES. Unless otherwise specified in an Order Form, through Client’s account settings or as otherwise agreed to by PhotoShelter in writing, Client shall pay to PhotoShelter the fees as set forth on an Order Form within thirty (30) days of an invoice from PhotoShelter. PhotoShelter reserves the right to immediately suspend and/or terminate access to Client’s account for late payment or nonpayment. Upon making payment, Client access to the account would be promptly restored. PhotoShelter reserves the right to change the fees charged for the Services at any time; provided that if such change applies to the services Client receives from PhotoShelter, PhotoShelter shall provide Client with reasonable prior notice of the change, and Client may terminate any outstanding Order Form applicable to the affected service within fifteen (15) days of receiving such notice from PhotoShelter. Such termination shall be effective upon the earlier of (a) thirty (30) days from the date Client provides notice of termination or (b) the first day upon which the new fee becomes effective.

9. TERM; TERMINATION.

9.1. Term. This Agreement shall commence on the effective date set forth on an applicable Order Form and, unless otherwise indicated on an applicable Order Form, shall continue until terminated by either party in accordance with the provisions set forth herein.

9.2. Termination. Either party may terminate this Agreement (a) for the other party’s material breach of this Agreement if such breach is not cured within fifteen (15) days of the non-breaching party providing notice to the breaching party or (b) upon thirty (30) days’ written notice to the other party.

9.3. Effect of Termination. Client will remain obligated to pay any fees for any Services or additional resources incurred prior to termination, and in the event of any outstanding unpaid balance, Client shall promptly remit such outstanding amounts to PhotoShelter upon termination. Upon termination, Client may request a copy of all Client Posted Content via CD-ROM or other storage media which is at such time supported by the Services for a fee of $250 per hour it takes to perform the download and migration of data, for a minimum of 2 hours, and PhotoShelter shall provide such copy if Client (a) has satisfied the entire outstanding balance relating to Client’s account; (b) paid the fees related to creating and distributing such copy of Client’ Posted Content; and (c) is not in violation of any of the terms and conditions contained herein. Upon any expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that (i) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive and (ii) the provisions of Sections 1 (Definitions), 2.5 (Limitations), 2.9 (Copyright), 2.10 (International Access), 7.1 (Proprietary Rights — Client), 7.2 (Proprietary Rights –PhotoShelter), 7.3 (Restrictions), 7.4 (Feedback), 10 (Third Party Services), 11 (Indemnification), 12 (Disclaimer of Warranties and Limitation on Liability), 13 (Miscellaneous) and this Section 9.3 (Effects of Termination) shall survive.

10. THIRD PARTY SERVICES. The purchase of any services provided by third parties through the Services (“Third Party Services”), including without limitation any fulfillment services for orders of Posted Content, image tracking services, website templates, analytics packages, or ancillary photo editing or processing services, is at Client’s own risk. Client acknowledges and agrees that (a) any transaction with a Third Party Service provider (“Third Party Service Provider”) is solely between Client and the applicable Third Party Service Provider; (b) any content transmitted by Client to any Third Party Service Provider is at Client’s own risk; (c) PhotoShelter does not make any representation or warranty about any Third Party Services or Third Party Service Providers; and (d) PhotoShelter will not be responsible or liable for any aspect of any transaction between Client and any Third Party Service Provider. PhotoShelter will endeavor to provide notification when a service is a Third Party Service.

11. INDEMNIFICATION. To the extent permissible by law, each party agrees to indemnify and hold harmless the other party and each of the other party’s directors, officers, shareholders, employees or members from and against any and all allegations, third party claims, demands, suits, actions or other proceedings and any corresponding liabilities, costs, settlement amounts, expenses (including reasonable attorney’s fees) or other losses paid to third parties arising from or relating to (i) such party’s material breach of any of its representations or warranties set forth herein or (ii) in the case of Client as the indemnifying party, to Client’s or its Registered Users’ use of the Services and/or any material or content, including without limitation Posted Content or content provided by other users or third parties, it or they submit, download, post or transmit through the Services.

12. DISCLAIMER OF WARRANTIES AND LIMITATION ON LIABILITY.

12.1. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, , PHOTOSHELTER HEREBY DISCLAIMS ALL OTHER WARRANTIES, ORAL OR WRITTEN, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SITE AND THE SERVICES (INCLUDING ALL CONTENT THEREON) AND CLIENT’S USE THEREOF, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES. IN SUCH JURISDICTIONS, THE AFOREMENTIONED DISCLAIMERS MAY NOT APPLY TO CLIENT.

12.2. LIMITATION ON LIABILITY. EXCEPT FOR BREACHES OF CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS HEREUNDER, TO THE FULLEST EXTENT ALLOWED BY LAW, NEITHER PARTY SHALL BE LIABLE CONCERNING THE SITE, SERVICES OR ANY CONTENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR (A) ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES; (B) COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR (C) DAMAGES THAT IN THE AGGREGATE EXCEED THE FEES PAID OR PAYABLE OVER THE IMMEDIATELY PREVIOUS SIX MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING LIMITATIONS OF LIABILITY, SO THE FOREGOING MAY NOT APPLY.

13. MISCELLANEOUS.

13.1. Governing Law. Any disputes arising out of or relating to this Agreement or use of the Services shall be resolved in accordance with the laws of the State of New York, without regard to its conflict of law rules. PhotoShelter and the Client hereby consent to the state and federal courts of New York, New York for all disputes arising from or relating to this Agreement or access to or use of the Site and/or Services.

13.2. Entire Agreement. This Agreement constitutes the entire agreement between Client and PhotoShelter with respect to the subject matter hereof. This Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof.

13.3. Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld. However, without consent, either party may assign this Agreement to any successor to all or substantially all of its business or assets which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.

13.4. Notice. Any notice that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when sent by confirmed e-mail to support@photoshelter.com or when delivered in person by nationally recognized overnight courier or mailed by first class, registered or certified mail, postage prepaid, to, 111 Broadway, 19th Floor New York, New York 10006 (in the case of PhotoShelter) or to the email address or physical address, as applicable, set forth on an applicable Order Form (for Client).

13.5. Modification and Waiver. No change, consent or waiver under this Agreement will be binding on either party unless made in writing and physically signed by an authorized representative of such party. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.

13.6. Interpretation. Headings used in this Agreement are for convenience only and have no legal or contractual significance.

13.7. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

13.8. Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 7 (Proprietary Rights) or the confidentiality obligations contained herein, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.

13.9. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of a facsimile (e.g., .pdf or electronic signature) copy shall have the same force and effect as execution of an original, and a facsimile signature shall be deemed an original and valid signature.

PhotoShelter has adopted the following policy toward copyright infringement with respect to the Site in accordance with the Digital Millennium Copyright Act, a copy of which is located here. The address of PhotoShelter’s Designated Agent to Receive Notification of Claimed Infringement (the Designated Agent) is listed at the end of this Copyright Policy.

PhotoShelter will (1) disable access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any Subscriber or Contributor to the Site; and (2) terminate the account and access to the PhotoShelter service of any repeat offender. This policy applies to all aspects of all services provided by PhotoShelter via the Site.

Reporting Copyright Infringements.

If you believe that content residing or accessible on the Site infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent:

1. Identification of the work or material being infringed.
2. Identification of the material that is claimed to be infringing, including its location, with sufficient detail so that PhotoShelter is capable of finding and verifying its existence.
3. Contact information about the notifying party (the Notifying Party), including name, address, telephone number and e-mail address.
4. A statement that the Notifying Party has a good faith belief that the material is not authorized by the copyright owner, its agent or law.
5. A statement made under penalty of perjury that the information provided in the notice is accurate and that the Notifying Party is authorized to make the complaint on behalf of the copyright owner.
6. The Notifying Party’s physical or electronic signature.

Responding to Complaints.

After notification of an alleged infringement is received by the Designated Agent:

1. PhotoShelter will remove or disable access to the allegedly infringing material.
2. PhotoShelter will then immediately notify the member responsible for the allegedly infringing material (the Offending Member) that it has removed or disabled access to the material.
3. If the Offending Member is a repeat offender, PhotoShelter will immediately terminate such member’s account and access to the Service in addition to removing the infringing material.

Designated Agent to Receive Notification of Claimed Infringement.

PhotoShelter, Inc.
111 Broadway
19th Floor
New York, NY 10006

Attn: Copyright Agent
Email: legal@photoshelter.com

By pressing “Create My Account” below, you (i) consent to receiving orders for printing services from Content Providers, (ii) acknowledge and agree that you are bound by the PhotoShelter’s Terms and Conditions of Use and (iii) you agree to the following Supplemental Terms and Conditions: As between you and the Content Providers, you acknowledge that the Content Providers own all rights, title and interest in and to all Content provided by Content Providers to you, and you shall use the Content for the sole purpose of performing the services requested by the applicable Content Provider and shall not provide the Content to any third party or use it for any other purpose. You may not subcontract the performance of such services to any third party. You are responsible for billing the applicable Content Provider directly for services provided by you, and all personal and billing information collected by you from any Content Provider to you shall kept strictly confidential by you and treated in accordance with PhotoShelter’s Privacy Policy.

Thank you for your support and interest in PhotoShelter and the PhotoShelter marks. It’s important for users to be able to trust PhotoShelter and not be confused about our relationship with the many people and organizations who use our marks. This document is designed to help you use our marks without having to worry about negotiating an agreement with us or talking to our lawyers. If you’d like to make any use of our marks that is not covered by this document, you must contact us at trademarks at PhotoShelter.com.

Promoting your own Account

Do:

• On the web: You can use the word ‘PhotoShelter’ (note the capital “S” in Shelter) spelled out or using a PhotoShelter logo and an optional link to your PhotoShelter Account. You can also use the current PhotoShelter logo or PhotoShelter P-Icon.
• In print: Use the word “PhotoShelter” spelled out or with a PhotoShelter logo.

Don’t:

• Manipulate the logos unless necessary due to color restrictions (for example, black and white)
• Imply sponsorship, endorsement, or false association with PhotoShelter, Inc.
• Use anything other than the most current versions of the PhotoShelter logos.
• Use any other artwork from our site without explicit permission.
• Create your own buttons or marks using our logos.

Talking about PhotoShelter in Publications, on TV, at Conferences

Do:

• Refer to “PhotoShelter” when talking about us.

Don’t:

• Make inaccurate statements about our service.
• Refer to us in a way that might imply a false sense of partnership or endorsement.

Merchandise/Manufactured Items

Please note that we don’t permit use of our marks on merchandise.

Do:

• Contact us at legal@PhotoShelter.com with a detailed proposal if you would like to request an exception.

Don’t:

• Use the PhotoShelter name or logo on any apparel, product, or merchandise without our permission.

Using the PhotoShelter Marks in your Ad or Marketing Campaign

Do:

• Use the current PhotoShelter logo as a link to the PhotoShelter service.
• Use the current PhotoShelter logo to show that your product is compatible with PhotoShelter.

Don’t:

• Use the marks in a way that might imply a false sense of partnership or endorsement with your brand.
• Distort or alter the PhotoShelter marks in any way.
• Use the marks in a way that confuses the PhotoShelter brand with another brand.
• Use anything other than the marks offered above unless given prior approval.

Naming your Application or Product, Applying for a Domain

We understand that you want your application or product that enhances the PhotoShelter experience to be identifiable as part of the PhotoShelter ecosystem. This is important to us too, but PhotoShelter is also the name of our service and company, so we’re cautious about potential confusion.

Do:

• Name your website, product, or application with something unique.
• Feel free to include language on your site explaining that your application is built on the PhotoShelter platform so people understand your product.

Don’t:

• Use PhotoShelter in the name of your website or application.
• Register a domain containing PhotoShelter (or misspellings of PhotoShelter).
• Apply for a trademark with a name including PhotoShelter (or similar variations thereof).

Visual Design of Your Website or Application

Do:

• Design your site with unique branding and logos.

Don’t:

• Copy our look and feel, as this could create user confusion.

Other Things to Know about the PhotoShelter Trademarks

The PhotoShelter name and logo are trademarks of PhotoShelter, Inc. in the United States and other countries. Please do not use the PhotoShelter marks in your avatar or business icon. Please remember to capitalize the S in PhotoShelter. For further information about use of PhotoShelter’s name and trademarks, please contact legal at PhotoShelter.com.

Click on one of the following to view the appropriate license between you and the photographer/copyright holder:

• Rights-Managed License
• Print License
• Personal Use Electronic Download
• Royalty-Free License

Rights Managed Image and Film License Agreement

THIS IS A LEGAL AGREEMENT BETWEEN THE LICENSEE (AS DEFINED BELOW) AND THE LICENSOR (AS DEFINED BELOW). THIS AGREEMENT APPLIES TO CERTAIN LICENSES ISSUED VIA THE PHOTOSHELTER.COM WEBSITE (THE “SITE”), AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOGUE (PHYSICAL) DELIVERY OF LICENSED MATERIAL (THE “AGREEMENT”). THE LICENSOR AND LICENSEE HEREBY ACKNOWLEDGE AND AGREE THAT NEITHER THE SITE NOR ITS OWNER, BITSHELTER, LLC (COLLECTIVELY, “PHOTOSHELTER”), IS A PARTY TO THIS AGREEMENT AND NO CLAIM SHALL BE MADE BY THE LICENSOR, THE LICENSEE OR ANY OF THEIR AFFILIATES AGAINST PHOTOSHELTER OR ITS AFFILIATES FOR ANY LOSS, DAMAGE OR ANY DISPUTE RELATING TO THE LICENSED MATERIAL (AS DEFINED BELOW) AND THE LICENSOR AND THE LICENSEE WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTIONS AGAINST PHOTOSHELTER TO THE FULLY EXTENT PERMITTED UNDER LAW. THE LICENSOR AND LICENSEE HEREBY AGREE TO JOINTLY AND SEVERALLY INDEMNIFY PHOTOSHELTER AND ITS AFFILIATES AGAINST ANY CLAIM, DAMAGE, EXPENSE OR OTHER LOSS INCURRED BY PHOTOSHELTER AS A RESULT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE MATTERS REFERENCED HEREIN.

1. Definitions. In this Agreement the following definitions apply:

1.1 “Invoice” means the computer-generated or pre-printed invoice provided by or through the Site that may include, without limitation, names of the Licensor and Licensee, the permitted scope of use of the Licensed Material selected and the corresponding price for the license of such Licensed Material.

1.2 “Licensed Material” means any still image, film or video footage, audio product, visual representation generated optically, electronically, digitally or by any other means, including any negatives, transparencies, film imprints, prints, original digital files or any Reproductions thereof, or any other product protected by copyright, trademark, patent or other intellectual property right, which is licensed to Licensee by Licensor under the terms of this Agreement. Any reference in this Agreement to the Licensed Material shall be to each individual item within the Licensed Material and also to the Licensed Material taken as a whole.

1.3 “Licensee” means the person or entity set forth in the applicable Invoice as the “licensee” and receiving the rights to the Licensed Materials as specified hereunder.

1.4 “Licensor” means the person or entity set forth on the Invoice as the “licensor” and granting the rights to the Licensed Materials as specified hereunder. For the avoidance of doubt, in no event shall PhotoShelter be deemed for any purposes hereunder as the Licensor.

1.5 “Reproduction” and “Reproduce” mean any form of duplication, copying or publication of any or all of the Licensed Material, via any medium and by whatever means, and/or the distortion or manipulation of the whole or any part of the Licensed Material and the creation of any derivative work from the Licensed Material.

2. Grant of Rights & Restrictions.

2.1 Subject to the terms and conditions contained herein, Licensor grants to Licensee a non-exclusive, non-assignable and non-sub licensable right to Reproduce the Licensed Material identified in the Invoice, solely to the extent explicitly stated in this Agreement. This right may be exercised by subcontractors of Licensee, provided that such subcontractors agree to abide by the terms of this Agreement.

2.2 Use of the Licensed Material 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 utilize the Licensed Material in any production process that may be necessary for the intended use specified in the Invoice.

2.3 If any Licensed Material 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 statement that indicates that the person so pictured is a model and is used for illustrative purposes only.

2.4 Pornographic, defamatory or otherwise unlawful use of Licensed Material is strictly prohibited.

2.6 Licensed Material shall not be incorporated into a logo, trademark or service mark.

2.7 Licensed Material shall not be used contrary to any restriction on use that is notified to Licensee prior to or at the time the Licensed Material is delivered to Licensee. Such restrictions may be included in the information provided with the Licensed Material on the Site, in the Invoice, or in any other communication by the Licensor. Any such restriction provided to the Licensee shall be incorporated in this Agreement by reference.

2.8 Upon reasonable notice, Licensor may inspect any records, accounts and books relating to the Reproduction of any of the Licensed Material to ensure that the Licensed Material is being used in accordance with this Agreement.

3. Copyright. No ownership or copyright in any Licensed Material shall pass to Licensee by the issuance of the license contained in this Agreement. Except as expressly stated in this Agreement, Licensor grants Licensee no right or license, express or implied, to the Licensed Material.

4. Releases. Licensor will notify Licensee if it has obtained a model release and/or a property release for Licensed Material, either in the release status information accompanying the Licensed Material on the Site, in the Invoice or by other means. If no such notification is given, then no such model or property release has been obtained. Except where Licensee is specifically notified, Licensor 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 Licensed Material. Both parties further agree and acknowledge that PhotoShelter 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 Licensed Material. Where Licensed Material is unreleased, Licensee shall be solely responsible for determining whether a release is required in connection with any proposed use of such Licensed Material. Licensee acknowledges that some jurisdictions provide legal protection against a person’s image, likeness or property being used for commercial purposes without their consent. Licensor makes no representations or warranties as to whether or not any additional fees or payments may be due to any model depicted in Licensed Material pursuant to the requirements of any applicable trade union and Licensee shall be solely responsible for any such additional fees or payments to such trade union. Both parties further agree and acknowledge that PhotoShelter has made no representation or warranty whatsoever regarding the Licensed Material.

5. Warranty and Limitation of Liability.

5.1 Licensor warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; (ii) the Licensed Material 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 Licensed Material); and (iii) subject to Section 4 above (Releases), Licensee’s use of the Licensed Material in its original form, and when used in accordance with this Agreement and the Invoice, 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.

5.2 LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR 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 LICENSED MATERIAL OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. LICENSOR’S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH LICENSEE’S USE OF OR INABILITY TO USE THE LICENSED MATERIAL (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL, TO THE EXTENT PERMITTED BY LAW, BE LIMITED TO THE VALUE OF 10 TIMES THE VALUE PAID BY THE LICENSEE FOR THE LICENSED MATERIAL.

5.3 THE REPRESENTATIONS AND WARRANTIES MADE BY LICENSOR IN THIS AGREEMENT APPLY ONLY TO THE LICENSED MATERIAL AS DELIVERED BY LICENSOR AND WILL BE INVALID IF THE LICENSED MATERIAL IS USED BY LICENSEE IN ANY MANNER NOT SPECIFICALLY AUTHORIZED IN THIS AGREEMENT OR IF LICENSEE IS OTHERWISE IN BREACH OF THIS AGREEMENT.

6. Indemnification.

6.1 Provided Licensed Material is only used in accordance with this Agreement and Licensee is not otherwise in breach of this Agreement, Licensor shall defend, indemnify and hold Licensee harmless from all damages, liabilities and expenses (including reasonable attorneys’ fees and permitted and authorized costs), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that Licensor is in breach of its warranties given in section 5 above.

THE FOREGOING STATES LICENSOR’S ENTIRE INDEMNIFICATION OBLIGATION TO LICENSEE UNDER THIS AGREEMENT AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY ALLEGED OR ACTUAL BREACH OF THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 5 ABOVE.

6.2 Where model or property releases for Licensed Material have not been obtained by Licensor, or if Licensee’s use of the Licensed Material is not authorized by this Agreement, Licensee shall defend, indemnify and hold Licensor 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 connected with any actual or threatened lawsuit, claim or legal proceeding relating to the use of such Licensed Material by Licensee, to the extent that such claim relates to the absence of a release or the Licensee’s unauthorized use of the Licensed Material.

7. Notice of Defense. The party seeking indemnification pursuant to section 6 shall promptly notify the other party of such claim. At indemnifying party’s option, indemnifying party may assume the handling, settlement or defense of any claim or litigation, in which event indemnified party shall cooperate in the defense thereof. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. The indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.

8. Parties’ Obligation. Upon notice from Licensor, or upon Licensee’s knowledge that any Licensed Material is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which Licensor may be liable herein, or if Licensor withdraws any Licensed Material for any good reason, Licensee will physically remove the Licensed Material from its premises, computer systems and storage (electronic or physical) and, if possible, cease any future use at its own expense. Licensor shall provide Licensee with comparable Licensed Material (which comparability will be determined by Licensor in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.

9. Electronic Storage. For all Licensed Material that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of Licensor and the image number or other identification number associated with the Licensed Material as may be included as part of the electronic file. Licensee may not make additional high-resolution copies of the Licensed Material and Licensee will maintain a robust firewall to safeguard against unauthorized third-party access to the Licensed Material. Notwithstanding the foregoing, Licensee may make one (1) high-resolution backup copy of the Licensed Material for security reasons only. Upon the expiration or earlier termination of this Agreement, Licensee shall promptly delete the Licensed Material from its computer or other electronic storage systems and shall ensure that its sub-contractors do likewise.

10. Interest. If Licensee fails to pay Licensor invoice in full within the time specified in the invoice, Licensor may add a service charge of one percent (1%) per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received. Licensor also reserves the right, in its sole discretion, to revoke the license if payment is not made in full on time.

12. Condition of Licensed Material. Licensee should examine all Licensed Material for possible defects (whether digital or otherwise) before sending any Licensed Material for Reproduction. Without prejudice to section 5.1.(ii) above, Licensor shall not be liable for any loss or damage suffered by Licensee or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Licensed Material or its caption or in any way from its Reproduction.

13. Credit Lines for Editorial Use. If any Licensed Material is Reproduced in an editorial manner, Licensor’s name or such credit information, if any, set forth on such Invoice, must appear adjacent to the Licensed Material in the credit line accompanying the Licensed Material.

15. Miscellaneous Terms.

15.1 Unauthorized Use. Any use of Licensed Material in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling Licensor 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.

15.2 Governing Law. 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. Any disputes arising from this Agreement or its enforceability shall be settled by binding arbitration to be held in either New York, NY. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement.

15.3 Severability. 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 revised only to the extent necessary to make them enforceable.

15.4 Waiver. No action of Licensor, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of Licensor in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by Licensor of any such rights or remedies will not preclude other or further exercise of that right or remedy. 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.

15.5 Entire Agreement. This Agreement, including the Invoice, 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 the Invoice, any purchase order or other communication sent by Licensee, the terms of this Agreement shall govern.

Print License

By purchasing the selected photographs (the “Prints”) you hereby agree and acknowledge that you are not acquiring any right, title or interest in or to the Print(s) or any associated copyrights, other than the right to possess, hold and use the Print(s) for non-commercial purposes. Furthermore, you agree that you will: (i) not scan, copy, duplicate or otherwise reproduce the Print(s), (ii) not use the Print for any commercial purpose, without the express written consent of the photographer and (iii) indemnify PhotoShelter and its affiliates, officers, members, managers, employees and agents against any claims, losses or damages incurred as a result of or in connection with your breach of the foregoing restrictions.

You also hereby acknowledge that the Prints are being produced and manufactured by a third party chosen by the Licensor, and that PhotoShelter is not involved nor otherwise responsible or liable for the production, manufacture, or delivery of such Prints.

Personal Use Electronic Download

By purchasing the selected photographs (the “Images”) you hereby agree and acknowledge that you are not acquiring any right, title or interest in or to the Images(s) or any associated copyrights, other then the right to possess, hold and use the Images(s) for personal, non-commercial purposes. Furthermore, you agree that you will: (i) not scan, copy, duplicate, distribute or otherwise reproduce the Images(s), (ii) not use the Images for any commercial purpose, without the express written consent of the photographer and (iii) indemnify PhotoShelter and its affiliates, officers, members, managers, employees and agents against any claims, losses or damages incurred as a result of or in connection with your breach of the foregoing restrictions.

Royalty Free Image and Film License Agreement

THIS IS A LEGAL AGREEMENT BETWEEN THE LICENSEE (AS DEFINED BELOW) AND THE LICENSOR (AS DEFINED BELOW). THIS AGREEMENT APPLIES TO CERTAIN LICENSES ISSUED VIA THE PHOTOSHELTER.COM WEBSITE (THE “SITE”), AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOGUE (PHYSICAL) DELIVERY OF LICENSED MATERIAL (THE “AGREEMENT”). THE LICENSOR AND LICENSEE HEREBY ACKNOWLEDGE AND AGREE THAT NEITHER THE SITE NOR ITS OWNER, BITSHELTER, LLC (COLLECTIVELY, “PHOTOSHELTER”), IS A PARTY TO THIS AGREEMENT AND NO CLAIM SHALL BE MADE BY THE LICENSOR, THE LICENSEE OR ANY OF THEIR AFFILIATES AGAINST PHOTOSHELTER OR ITS AFFILIATES FOR ANY LOSS, DAMAGE OR ANY DISPUTE RELATING TO THE LICENSED MATERIAL (AS DEFINED BELOW) AND THE LICENSOR AND THE LICENSEE WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTIONS AGAINST PHOTOSHELTER TO THE FULLY EXTENT PERMITTED UNDER LAW. THE LICENSOR AND LICENSEE HEREBY AGREE TO JOINTLY AND SEVERALLY INDEMNIFY PHOTOSHELTER AGAINST ANY CLAIM, DAMAGE, EXPENSE OR OTHER LOSS INCURRED BY PHOTOSHELTER AND ITS AFFILIATES AS A RESULT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE MATTERS REFERENCED HEREIN.

1. Definitions. In this Agreement the following definitions apply:

1.1 “Invoice” means the computer-generated or pre-printed invoice provided by or through the Site that may include, without limitation, names of the Licensor and Licensee, the permitted scope of use of the Licensed Material selected and the corresponding price for the license of such Licensed Material.

1.2 “Licensed Material” means any still image, film or video footage, audio product, visual representation generated optically, electronically, digitally or by any other means, including any negatives, transparencies, film imprints, prints, original digital files or any Reproductions thereof, or any other product protected by copyright, trademark, patent or other intellectual property right, which is licensed to Licensee by Licensor under the terms of this Agreement. Any reference in this Agreement to the Licensed Material shall be to each individual item within the Licensed Material and also to the Licensed Material taken as a whole.

1.3 “Licensee” means the person or entity set forth in the applicable Invoice as the “licensee” and receiving the rights to the Licensed Materials as specified hereunder.

1.4 “Licensor” means the person or entity set forth on the Invoice as the “licensor” and granting the rights to the Licensed Materials as specified hereunder. For the avoidance of doubt, in no event shall PhotoShelter be deemed for any purposes hereunder as the Licensor.

1.5 “Reproduction” and “Reproduce” mean any form of duplication, copying or publication of any or all of the Licensed Material, via any medium and by whatever means, and/or the distortion or manipulation of the whole or any part of the Licensed Material and the creation of any derivative work from the Licensed Material.

1.6 “User” means any employee or subcontractor of the Licensee who manipulates, edits, or modifies the original digital file containing the Licensed Material or incorporates the Licensed Material within any derivative work.

2. Grant of Rights. Subject to the terms of this Agreement:

2.1 Licensee has the non-exclusive, non-transferable, non-sublicensable right to Reproduce the Licensed Material identified in the Invoice an unlimited number of times in any and all media for the following purposes (together the “Permitted Uses”):

2.1.1 Advertising and promotional materials;

2.1.2 Broadcast and theatrical exhibitions;

2.1.3 Print publications and physical products;

2.1.4 Electronic publications including website design, up to a maximum resolution of 72dpi; and

2.1.5 Any other uses approved by the Licensor in the Invoice or otherwise in writing.

2.2 Licensee has the right to have the Licensed Material Reproduced by subcontractors of Licensee, provided that Licensee ensures that such subcontractors agree to abide by the provisions of this Agreement.

2.3 Licensee may alter, crop, manipulate and create derivative works of the Licensed Material.

2.4 Licensee’s rights to the Licensed Material are worldwide and perpetual.

3. Restrictions.

3.1 Licensee may store the Licensed Material in a digital library, network configuration or similar arrangement to allow the Licensed Material to be viewed by employees, partners and clients of Licensee, but under no circumstance may the Licensed Material ever be used by more than 10 Users unless otherwise provided in writing by the Licensor.

3.2 Licensee may not sublicense, sell, assign, convey or transfer this Agreement or any of its rights under this Agreement but Licensee may sell or license derivative works incorporating the Licensed Material. However, Licensee may not include the Licensed Material in an electronic template intended to be Reproduced by third parties on electronic or printed products.

3.3 Licensee may not sell, license or distribute any derivative work containing the Licensed Material in a way that would allow a third party to download, extract or access the Licensed Material as a standalone file.

3.4 Licensed Material shall not be incorporated into a logo, trademark or service mark.

3.5 Licensee may not post the Licensed Material online in a downloadable format or enable it to be distributed via mobile telephone devices.

3.6 If any Licensed Material 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) connection with a subject that would be unflattering or unduly controversial to a reasonable person, Licensee must accompany each such use with a statement that indicates that the person is a model and the Licensed Material is being used for illustrative purposes only.

3.7 The Licensed Material may not be used in a pornographic, defamatory or otherwise illegal manner.

3.8 Licensee must retain the copyright symbol, the name of Licensor or such other credit information, if any, provided in the invoice, the Licensed Material’s identification number and any other information as may be invisibly embedded in the electronic file containing the original Licensed Material.

3.9 Licensee must abide by any restriction on use notified to it by Licensor before or at the time of delivery of the Licensed Material, either in the Invoice, information accompanying the Licensed Material or otherwise.

3.10 If any Licensed Material is Reproduced in an editorial manner, Licensor’s name or, such other credit information, if any, provided in such Invoice, must appear adjacent to the Licensed Material in the credit line accompanying the Licensed Material.

4. Copyright. No ownership or copyright in any Licensed Material shall pass to Licensee by the issuance of the license contained in this Agreement. Except as expressly stated in this Agreement, Licensor grants Licensee no right or license, express or implied, to the Licensed Material.

5. Warranty and Limitation of Liability.

5.1 Licensor warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; (ii) the Licensed Material 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 Licensed Material); and (iii) Licensee’s use of the Licensed Material in its original form, and when used in accordance with this Agreement and the Invoice, 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.

5.2 LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR 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 LICENSED MATERIAL OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. LICENSOR’S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH LICENSEE’S USE OF OR INABILITY TO USE THE LICENSED MATERIAL (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL, TO THE EXTENT PERMITTED BY LAW, BE LIMITED TO THE VALUE OF 5 TIMES THE VALUE PAID BY THE LICENSEE FOR THE LICENSED MATERIAL.

5.3 THE REPRESENTATIONS AND WARRANTIES MADE BY LICENSOR IN THIS AGREEMENT APPLY ONLY TO THE LICENSED MATERIAL AS DELIVERED BY LICENSOR AND WILL BE INVALID IF THE LICENSED MATERIAL IS USED BY LICENSEE IN ANY MANNER NOT SPECIFICALLY AUTHORIZED IN THIS AGREEMENT OR IF LICENSEE IS OTHERWISE IN BREACH OF THIS AGREEMENT.

6. Indemnification.

6.1 Provided Licensed Material is only used in accordance with this Agreement and Licensee is not otherwise in breach of this Agreement, Licensor shall defend, indemnify and hold Licensee harmless from all damages, liabilities and expenses (including reasonable attorneys’ fees and permitted and authorized costs), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that Licensor is in breach of its warranties given in section 4 above.

THE FOREGOING STATES LICENSOR’S ENTIRE INDEMNIFICATION OBLIGATION TO LICENSEE UNDER THIS AGREEMENT AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY ALLEGED OR ACTUAL BREACH OF THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 5 ABOVE.

6.2 Where Licensee’s use of the Licensed Material is not authorized by this Agreement, Licensee shall defend, indemnify and hold Licensor 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 Licensed Material outside the scope of this Agreement or any other breach by Licensee of this Agreement.

6.3 The party seeking indemnification pursuant to this section 6 shall promptly notify the other party of such claim. At indemnifying party’s option, indemnifying party may assume the handling, settlement or defense of any claim or litigation, in which event indemnified party shall cooperate in the defense thereof. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. The indemnifying party will not be liable for legal fees or other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.

7. Termination and Revocation.

7.1 The license contained in this Agreement will terminate automatically without notice from Licensor if Licensee fails to comply with any provision of this Agreement. Upon termination, Licensee must immediately (i) stop using the Licensed Material; (ii) destroy or, upon the request of Licensor, return the Licensed Material to Licensor; and (iii) delete or remove the Licensed Material from Licensee’s premises, computer systems and storage (electronic or physical).

7.2 Licensor reserves the right to revoke the license to use the Licensed Material for good cause and elect to replace such Licensed Material with alternative Licensed Material. Upon notice of any revocation of a license for any particular Licensed Material, Licensee shall immediately cease using such Licensed Material and shall where possible ensure that its clients and customers do likewise.

8 Condition of Licensed Material. Licensee should examine all Licensed Material for possible defects (whether digital or otherwise) before sending any Licensed Material for Reproduction. Without prejudice to section 5.1, Licensor shall not be liable for any loss or damage suffered by Licensee or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Licensed Material or its caption or in any way from its Reproduction.

9. Miscellaneous Terms.

9.1 Unauthorized Use. Any use of Licensed Material in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling Licensor 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.

9.2 Governing Law. 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. Any disputes arising from this Agreement or its enforceability shall be settled by binding arbitration to be held in New York, New York. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement.

9.3 Severability. 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 revised only to the extent necessary to make them enforceable.

9.4 Waiver. No action of Licensor, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of Licensor in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by Licensor of any such rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy by Licensor on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.

9.5 Entire Agreement. This Agreement 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 communication sent by Licensee, the terms of this Agreement shall govern.