1.1 “Invoice” means the website-generated, computer-generated, or printed invoice provided by thefloridagallery.com that may include, among other things, the Licensed
Material selected, any limitations on the license in addition to those specified herein, and the corresponding price for the license of such Licensed Material. The Invoice is hereby
incorporated into this Agreement and all references to this Agreement shall include the Invoice.
1.2 “Licensed Material” means any image, visual representation created electronically, digitally, or by any other means, original digital files, including any negatives, transparencies, prints, or any Reproductions thereof, or any other product protected by copyright, trademark, patent, or other intellectual property right, including all metadata including keywords, descriptions, and captions associated therewith which is licensed to Licensee by thefloridagallery.com 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 “Reproduction” and “Reproduce” mean any form of copying or publication in whole or in part of any Licensed Material, via any medium by any means whatsoever, and 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.
1.4 “Licensee” means any user of the Site, and/or employee, agent, 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 and (i) you, if you are an individual entering into this Agreement on your own behalf, (ii) your
employer, if you are entering into this Agreement on behalf of your employer, or (iii) your client, if you are an agent entering into this Agreement on behalf of your client. If you are acting on behalf of your employer or client, you: (i) represent and warrant that you have the full legal right and authority to enter into this Agreement and bind such employer or client, (ii) will use the Licensed Material only for the interest of such employer or client, and (iii) agree to be bound by the terms and conditions of this Agreement.
2. Grant of Rights
Subject to the terms of this Agreement:
2.1 Upon full payment of the Invoice amount,
the Licensee shall obtain the non-exclusive, non-transferable, non-sublicensable, and non-assignable right to Reproduce the Licensed Material identified in the Invoice for an
unlimited number of times in any and all media for the following purposes (hereinafter the “Permitted Uses”):
(i) Advertising and promotional materials;
(ii) Broadcast and theatrical exhibitions;
(iii) Print publications and physical products;
(iv) Electronic publications including website design; and
(v) Any other use approved in writing by thefloridagallery.com.
2.2 Licensee shall have the right to Reproduce the Licensed Material 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. Derivative works incorporating the Licensed Material are permitted provided Licensee acknowledges that the right to produce derivative works incorporating the Licensed Material in no way grants to Licensee or any other party any right to the intellectual property or other rights to the Licensed Material, and provided Licensee does not use the Licensed Material in any electronic template or application, including those
that are internet-based, where the purpose is to create multiple impressions of an electronic or printed product, including but not limited to website designs, presentation templates, electronic greeting cards, or any other electronic or printed matter without obtaining a separate and specific license for such purpose.
3.1 Licensee may not sublicense, sell, assign,convey, or in any other way transfer this Agreement or any of its rights under this Agreement. The foregoing notwithstanding, 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.
3.2 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.
3.3 Licensed Material shall not be incorporated into a logo, trademark, or service mark.
3.4 Licensee may not post the Licensed Material online in a downloadable format or enable it to be distributed via mobile telephone devices or any other method of distribution now in existence or hereafter developed.
3.5 If any Licensed Material featuring a model is used (i) in 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 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.
3.6 The Licensed Material may not be used in a pornographic, defamatory, or otherwise illegal manner, whether directly or in context or juxtaposition with other materials.
3.7 Licensee must retain information that is invisibly embedded in the electronic file containing the original Licensed Material, including without limitation, all metadata, the copyright symbol, the name thefloridagallery.com, the digital watermark of thefloridagallery.com, the Licensed Material’s identification number, and any other information so included by thefloridagallery.com at the time of the original grant of license or at any time thereafter required by thefloridagallery.com to be included.
3.8 Licensee must abide by any restriction on use made by thefloridagallery.com before, at the time of delivery of the Licensed Material, and/or at any other time thereafter, either in the information accompanying the Licensed Material or otherwise.
3.9 If the Licensed Material is used in an editorial manner, Licensee must include the following credit adjacent to the Licensed Material: “© thefloridagallery.com”.
3.10 Number of Users
This is a single-user license to be used only by the Licensee; however, the Licensee may transfer files that contain the Licensed Material, provided the transfer does not allow others to extract or access the Licensed Material as a stand-alone file.
The Licensee may only use the Licensed Material on one (1) computer at any given time. Before accessing the Licensed Material in more than one (1) location or permitting additional access to another individual, Licensee must contact thefloridagallery.com to upgrade its license. If subscription services are offered by thefloridagallery.com, the Licensee shall only use the subscription on one (1) computer at any given time, and may not share personal login information with any other individual. Before accessing the
subscription in more than one (1) location or permitting additional access to another individual, Licensee must contact thefloridagallery.com to upgrade its license.
thefloridagallery.com reserves the right to monitor Licensee’s account and implement any measure to prevent Licensee from sharing personal login information.
4.1 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, thefloridagallery.com grants Licensee no right or license, express or implied, to the Licensed Material.
4.2 Copyright shall extend to the content of the Site and shall constitute and be defined, without limitation, as any files, images, animations, photographs, or text available on the Site and also as otherwise provided herein.
4.3 The design and layout, as well as all Licensed Materials provided on the Site, or of any other website owned, operated, licensed, or controlled by or associated with thefloridagallery.com, are protected by the laws of the United States as well as International law and other intellectual property proprietary rights and may not be copied or reproduced in whole or in part.
5. Warranty and Limitation of Liability
5.1 thefloridagallery.com warrants that:
(i) it has all necessary rights and authority to enter into and perform this Agreement; and (ii) the Licensed Material will be free from defects in material and workmanship for 30 days from delivery if in an unaltered state (Licensee’s sole and exclusive remedy for a breach of this warranty being the replacement of the Licensed Material).
5.2 thefloridagallery.com makes no other warranties, express or implied, regarding the licensed material, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Neither thefloridagallery.com, nor any of its affiliates, directors, officers, employees, agents, attorneys, and successors shall 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 thefloridagallery.com has been advised of the possibility of such damages, costs, or losses.
5.3 thefloridagallery.com’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 paid to thefloridagallery.com by the Licensee for the Licensed Material.
5.4 The representations and warranties made by thefloridagallery.com in this Agreement apply only to the licensed material as provided by thefloridagallery.com 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.
5.5 Caption information and Release availability are identified to the best of thefloridagallery.com’s ability, but no warranties are made with respect to the accuracy of captions or the existence of a Model Release or Property Release. The Licensee is solely responsible for the accuracy of caption information and determining whether usage of Licensed Material requires the consent of any other party or the license of any additional rights. If required for publication, the Licensee should contact thefloridagallery.com to obtain copies of Releases and clearances if any are available.
6.1 Provided that the Licensed Material is used only in accordance with this Agreement and Licensee is not otherwise in breach of this Agreement, thefloridagallery.com shall defend, indemnify, and hold Licensee harmless from all damages (excluding punitive damages), liabilities, and expenses (including reasonable attorneys fees and costs), arising out of or connected to any actual lawsuit, claim, or legal proceeding alleging that thefloridagallery.com is in breach of its warranties given in section 5 above only. The foregoing states thefloridagallery.com’s entire indemnification obligation 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 Licensee shall defend, indemnify, and hold thefloridagallery.com, its parent company, agents, affiliates, attorneys, and representatives 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 the indemnifying party’s option, the indemnifying party may assume the handling, settlement, or defense of any claim or litigation, in which event the indemnified party shall cooperate in the defense thereof. The indemnified party shall have the right to participate in such litigation, at its own expense, through counsel selected by the 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 provided for by this Agreement will terminate automatically and without notice from thefloridagallery.com 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 thefloridagallery.com, return the Licensed Material to thefloridagallery.com; and (iii) delete or remove the Licensed Material from Licensee’s premises, computer systems, and storage (electronic and physical).
7.2 thefloridagallery.com reserves the right to revoke the right to use the Licensed Material and may elect to replace such Licensed Material with alternate Licensed Material. Immediately upon notice by thefloridagallery.com of any revocation of a license for any particular Licensed Material, Licensee shall immediately cease using such Licensed Material and shall ensure that its clients and customers do so likewise and shall make all reasonable attempts to ensure same.
8. Account Usage
Licensee understands and agrees that thefloridagallery.com may, in its sole unfettered discretion:
(i) Monitor Licensee’s download activity from thefloridagallery.com as often as thefloridagallery.com determines necessary under its sole discretion for any reason and for any violation of this Agreement;
(ii) Disable any account that engages in what thefloridagallery.com determines to be a large number of downloads on any given day, as such activity indicates possible EULA
violations or abuse of a username/password and account;
(iii) Limit downloads to a fixed number per 24 hour period, per user, as thefloridagallery.com sees fit on an individual basis, and to ensure the quality of its service;
(iv) Investigate any abuse of a username and password in connection with the thefloridagallery.com Site or in connection with this Agreement;
(v) Take the appropriate action to investigate all potential abuse, which can lead to contacting the individual involved with the violations, account suspension, account termination, or other actions deemed necessary depending on the nature and severity of the violations, regardless of whether thefloridagallery.com is able to confirm the validity or origin of the activity;
(vi) Terminate an account immediately and without notice for any violation of this Agreement, or the Terms found in this Agreement and elsewhere on thefloridagallery.com. If an account is terminated for any violation of this Agreement and/or abuse of a username or password, and/or the Licensed Materials, you shall lose all rights to thefloridagallery.com Licensed Materials, and you must IMMEDIATELY delete any and all Licensed Materials obtained prior to this termination, and forfeit all fees paid;
(vii) You understand that Licensed Materials are copyrighted and owned by the photographers contributing to thefloridagallery.com only, and any unauthorized use of any of these Licensed Materials by you may be an infringement upon said copyright.
9. 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), thefloridagallery.com 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. Licensee assumes the cost of service, repairs, or corrections to hardware, software, or other equipment.
10. Jurisdiction and Remedies
10.1 This Agreement has been entered into in the State of Florida, is made under the laws of the State of Florida, and shall be construed according to the laws of the State of Florida without regard to any conflict of law provisions. In the event that this Agreement is breached, any and all disputes must be settled first by non-binding mediation in Palm Beach County Florida, and if no resolution is there achieved, then in a court of competent jurisdiction in the State of Florida, in the county of Palm Beach. The parties hereto expressly consent and submit themselves to the personal jurisdiction and venue of the Circuit Court in and for Palm Beach County.
10.2 The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. Notwithstanding the foregoing, thefloridagallery.com shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against Licensee.
10.3 In the event of any action, suit, or proceeding arising from or based upon this Agreement brought by either party hereto against the other, the prevailing party shall be entitled to recover from the other its reasonable attorneys’ fees and costs in connection therewith.
10.4 Except as otherwise provided herein, all rights and remedies herein or otherwise shall be cumulative and none of them shall be in limitation of any other right or remedy.
10.5 ALL CLAIMS MUST BE BROUGHT WITHIN TWELVE (12) MONTHS OF THE DATE THAT LICENSEE DISCOVERED THE CLAIM OR SHALL BE WAIVED.
11.1 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 thefloridagallery.com to exercise all rights and remedies available to it under any and all copyright laws in any jurisdiction. Licensee shall be responsible for any damages resulting from any such copyright infringement, including claims by a third party.
No action of thefloridagallery.com, other than by express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of thefloridagallery.com in the exercise of its rights or remedies shall not operate as a waiver of such rights or remedies, and a single or partial exercise by thefloridagallery.com of any such rights or remedies will not preclude other or further exercise of any right or remedy. A waiver of a right or remedy by thefloridagallery.com on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.
Licensee shall be responsible for any and all sales taxes, use taxes, value added taxes, and duties imposed by any jurisdiction as a result of Licensee’s use of the Licensed Material or as a result of the license granted to Licensee.
11.4 Entire Agreement
This Agreement contains all the terms of the License Agreement. 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.
If any of the provisions of this Agreement are found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision(s) shall be deemed modified to the limited extent required to permit enforcement of the Agreement as a whole.
Ambiguities or uncertainties in the wording of this Agreement shall not be construed for or against any party, and there shall be no presumption that this Agreement or any provision hereof be construed against the party that drafted this Agreement.
In the event this entire Agreement is for any reason deemed to be invalid, illegal, or unenforceable, Finder shall be entitled to the reasonable value of his services and shall be entitled to retain all compensation paid to him hereunder as the reasonable value of said services.
11.9 Relationship of the Parties
Nothing herein contained shall constitute a partnership or joint venture between thefloridagallery.com and Licensee. Neitherthefloridagallery.com nor Licensee shall hold either out contrary to the terms of this paragraph, and neitherthefloridagallery.com nor Licensee shall become liable for any representation, act, or omission of the other contrary to the provisions hereof.
11.10 Section Headings/Gender
The headings and gender of paragraphs, sections, and other subdivisions of this Agreement are for convenience only. They shall not be used in any way to govern, limit, modify, or construe this Agreement or any part or provision thereof or otherwise be given any legal effect.
LICENSEE AGREES THAT HE FULLY UNDERSTANDS THE CONTENTS, MEANING, AND IMPACT OF THIS AGREEMENT. LICENSEE WILL NOT USE THE SITE OR THE LICENSED MATERIALS IN ANY WAY THAT IS FORBIDDEN BY THIS AGREEMENT. YOU WARRANT THAT YOUR USE OF THE SITE OR LICENSED MATERIALS WILL NOT VIOLATE ANY APPLICABLE LAW OR REGULATION OF ANY COUNTRY, STATE, OR OTHER GOVERNMENTAL ENTITY. YOU FURTHER ATTEST THAT THE INFORMATION YOU PROVIDE TO THEFLORIDAGALLERY.COM IS ACCURATE AND TRUE AND YOURS TO PROVIDE, INCLUDING WITHOUT LIMITATION ALL CREDIT CARD INFORMATION.