By uploading your content, you agree to the terms of this Agreement. You agree that this Agreement applies to each file that you upload, including the Content uploaded prior to the effective date of this Agreement. For the avoidance of doubt, we will not enter into separate agreements for each file, as this Agreement applies to all files that you upload to Imagensia.
1.1 Intellectual Property Rights. You represent and warrant that you own all rights to the Content, including all copyright, trademarks, patents, rights of privacy, rights of publicity, moral rights, and other intellectual property rights, or have all necessary rights and license to grant us the licenses under this Agreement. To the extent permitted, you specifically waive any moral rights with respect to the Content to the extent permitted by law, and if no waiver is permitted, you agree not to enforce the right against us, our affiliates and our end users. You further represent and warrant that the Content will not infringe the Intellectual Property Rights of others, contain misleading or false information, or contain any illegal content. You will not upload any Content that infringes or violates the Intellectual Property Rights of any person or entity. We may remove Content or terminate your account in our sole discretion without prior notice.
1. INTELLECTUAL PROPERTY RIGHTS
a. Stock If the Content contains images or likeness of an identifiable person, trademark, or logos or certain distinctive property that is protected by Intellectual Property Rights, you warrant that you have obtained all necessary and valid model- or propertyreleases for each person or property depicted in the Content.
b. Editorial Content uploaded under categories News Photo, News Video OR you choose “Editorial use only”, may be accepted without a model or property release, at our sole discretion, and subject to any of our guidelines or requirements. For Content classified as “Editorial Use only”, you represent and warrant that:
(A) the Content truthfully depict the subject and all corresponding information is accurate, and
(B) the Content have not been modified in a way that alters the editorial context or integrity of the Work.
2.1 Uploading. All of your content should be uploaded and submitted in the file formats requested by us, and submitted via the methods available on our website. All of your content uploaded will be inspected by us. We may accept or reject your submitted Content at our sole discretionat any time.
2. UPLOADING AND SUBMITTING CONTENT
2.2 Managing Your Work. You may remove any of your Work from the Website at any time; provided, however, you do not remove more than 100 items of Work or 10% of your Work, whichever is greater, in any 90 day period without 90 days prior written notice to us.
3.1 Imagensia's Use of uploaded Content. Imagensia may use the uploaded content for the purposes of marketing and promoting your Content, our Website and all our Social Media Platforms, in which event you grant us a non-exclusive, worldwide, and royalty-free license to use, reproduce, publicly display, distribute, modify and translate the Content as needed.
3.2 Quality inspection. Our Quality Inspection Team may, or may not accept your submission. If we find your submission unsuitable for our website, we have no obligation to accept it.
3.3 General License to Our Customers. The license to our customers includes the right to modify and create new works based upon the your Content, including the right to sell or distribute for sale the Content or any reproductions thereof in any media or format. Each such (royalty-free)license is subject to payment of a license fee by those customers, and we are entitled to a portion of the fee price, in accordance with our Standard pricing and payment policies.
3.4 Subscription Program. We may grant our customers the right to license the Content pursuant to our subscription program and an applicable Subscription Agreement, subject to payment of a subscription fee by the customer. Imagensia will pay you a fee for each unique download under a subscription program, in accordance with our Standard pricing and payment policies.
4.1 License. If you designate the Work as exclusive to us at the time of upload, then the license you grant to us in Section 3 above becomes exclusive.
4.2 Total Exclusivity. You may obtain “Total Exclusivity” status by setting up your profile as such or during indexing of your Works. “Total Exclusivity” status means that no Work from you is offered (for free or for sale) on another royalty-free stock photography website or on your own website or through other method. All your Works must be exclusively offered (for sale or for free) on our Website.
4.3 Requirement. You are not eligible for the “Total Exclusivity” status if you offer the Works on other websites or agencies, including works that have never been submitted to our Website, Works that we have refused, and Work types that are not available on our Website.
4.4 Benefits. Total Exclusivity status allows you to enjoy certain benefits, such as higher commission rate and raising the price of your Works, in accordance with our Standard pricing and payment policies.
4.5 Exceptions. Notwithstanding the foregoing, you won’t lose your Total Exclusivity status and may continue to: sell your Works as rights-managed Works either by yourself or through a rights-managed company, sell your Works through your personal portfolio website (provided that you cannot offer for free or for sale other author’s Works on that website), sell your Works directly to end users in accordance with an assignment contract or editorial contract, sell prints of your Works, and to print and sell derivative products such as posters, t-shirts, clothing, decorations, and the like, whether directly or through a dedicated website (provided that the website must not offer for free or for sale royalty-free creative Works).
4.6 Termination and Effects of Termination. You may terminate your Total Exclusivity status by updating your profile or by uploading non-exclusive Works on our Website. Upon termination of your Total Exclusivity status, you lose all benefits related to the status and all your commissions on all your Works become non-exclusive as of the time the status is terminated. We may deduct from your account any credits that are unduly earned (such as if you are ineligible for the Total Exclusivity status but are nevertheless receiving credits under the Total Exclusivity status).
5.1 Payment. Unless otherwise stated in this Agreement, we have no payment obligations to you other than pursuant to our Standard pricing and payment policies, which may be updated from time to time (“Pricing and Payment Policies”). We may modify the Pricing and Payment Policies from time to time, including but not limited to updating the categories of Work, updating pricing and payment terms and/or directing you to new Pricing and Payment Policies for pricing and payment policies. You should look at the Pricing and Payment Policies regularly. By continuing to submit or upload Works or not removing Works, you are agreeing to any new pricing and payment policies as revised from time to time. We may pay you through a third party payment processor, Adobe Systems Incorporated or any of our affiliates. You may designate you Work as free content, in which case we may distribute the content without liability or payment to you. If we offer a promotion, trial, test or watermarked version of your Work, we are not subject to the payment obligations in this section.
5. PAYMENT AND ROYALTIES
5.2 Taxes. You are responsible for completing any necessary IRS forms in order to receive payment. A "US Person" (as defined by the IRS) must submit a completed IRS Form W-9 to us. A "Foreign Person" (as defined by the IRS) must submit a completed IRS Form W-8 to us in order to claim a reduced rate of, or exemption from, withholding as a resident of a foreign country with which the United States has an income tax treaty. If any fee payable to you is subject to tax withholding or other tax collected at the source by any taxing authority, we will deduct such tax from the fee payable to you. We will make reasonable effort to provide you with a copy of the official receipt covering such payment of tax, if such copy is available. We will reasonably cooperate with you in order to obtain the benefit of any applicable tax treaties pertaining to such taxes.
You retain all rights, title and interest in and to the Work (except for the licenses granted pursuant to this Agreement), and neither title nor any ownership interest in or to the Work is transferred to us by virtue of this Agreement. You also retain the right to use, reproduce or display the Work as part of your professional portfolio. Both we and our members who download a Work, have the right, but not the obligation, to identify you as the author and source of the Work in a customary manner. In addition, metadata may be altered, removed, added to, without any liability to us. You grant us the right to enforce your IP Rights against infringers, but we have no obligation to do so.
6. OWNERSHIP AND RETENTION OF RIGHTS
7.1 Limitation. We are not liable to you or anyone else for any special, incidental, indirect, consequential, or punitive damages (even if we have been advised of the possibility of these damages), including those
(a) resulting from loss of use, data, or profits, whether or not foreseeable,
(b) based on any theory of liability, including breach of contract or warranty, negligence or other tortious action, or
(c) arising from any other claim arising out of or in connection with your use of or access to the Services or Works. Nothing in these terms limits or excludes our liability for gross negligence or for our (or our employees’) intentional misconduct.
7.2 Disclaimer. The Website and Services are provided “AS-IS.” To the maximum extent permitted by law, we disclaim all warranties express or implied, including the implied warranties of merchantability and fitness for a particular purpose. The limitations and exclusions in this section apply to the maximum extent permitted by law.
We may terminate this Agreement or remove any Work or suspend your account without prior notice. In the event of your breach of the terms this Agreement or as part of our investigation for fraudulent or illegal activities or in response to law enforcement requests, we will notify you prior to terminating your account. We will have no payment obligation to you if we terminate the Agreement for cause. You may terminate this Agreement at any time upon at least 90 days prior written notice to us in a manner that we prescribed on our Website. We may deny the uploading of any Work our Website. We will use reasonable efforts to have your Work that you removed from our Website to be removed from the websites of any of our affiliates (including co-branded websites) within 60 days after removal of the Work from our Website. Before the termination of these Agreement or removal of your Work from the websites of any of our affiliates, our end users may continue to obtain new licenses to your Work.
8. TERMINATION OF AGREEMENT
We may continue to use the Work solely for internal archival and reference purposes or as stated in this section Any licenses granted to our end users or to us prior to the date of termination or prior to the removal of any Work from the Website will survive the termination of these Agreement. Additionally, our end users whose agreements allow them to license and possess a Work as a comp version (e.g., a preview sample for the end user or the end user’s client) may further convert that license to a usage license. We will provide payment as stated in section 5 for any license fee that we receive as related to the Work after termination of these Agreement.
9.1 Governing Law. If you reside in the U.S., then your relationship is with Fotolia LLC. Otherwise your relationship is with Adobe Canada Services Corporation. The Services and these terms are governed by the law of California. You may have additional rights under the law. We do not seek to limit those rights to the extent prohibited by law.
9.2 Dispute Resolution. For any concern or dispute you may have, you agree to first try to resolve the dispute informally by contacting us. If a dispute is not resolved within 30 days of submission, you or we must resolve any claims relating to these terms, the Services, the Work, or the Website through final and binding arbitration, except that you may assert claims in small claims court if your claims qualify. JAMS will administrate the arbitration pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitration will be held in Santa Clara County, California, or any other location we agree to. Judgment upon the award rendered may be entered and will be enforceable in any court of competent jurisdiction having jurisdiction over the parties.
9.3 No Class Actions. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action.
9.4 No Agency. The relationship between you and us under this Agreement is that of independent contractors. For clarification purposes, the parties are not joint ventures, partners, principal and agent, or employer and employee. Neither party shall have the power to bind or obligate the other in any manner.
9.5 Taxes. You are responsible for all use, sales, value-added and similar taxes and duties imposed by any governing authority in any jurisdiction in connection with the license granted to you under this Agreement.
9.6 No Waiver. Our failure to enforce or exercise any of these terms is not a waiver of that section.
9.7 Assignment. We have the right, in our sole discretion, to assign any or all of our rights or obligations under this Agreement. You have no right to assign any of your rights or obligations under this Agreement and any such attempt will be void.
9.8 Severability. If a particular term is not enforceable, the unenforceability of that term will not affect any other terms.
9.9 Modification. We may modify these terms that apply to these Works to, for example, reflect changes to the law or changes to our services. You should look at the terms regularly. We’ll post notice of modifications to these terms on this page. By continuing to use or access the Website after the revisions come into effect, you agree to be bound by the revised terms.
9.10 English Version. The English version of this Agreement will be the version used when interpreting or construing these terms.