SURF IMAGES - IMAGERY LICENSING TERMS AND CONDITIONS
This document, together with any Invoice and/or Delivery Memo provided now or hereafter, (collectively, the "Agreement") governs your rights and obligations concerning delivered Image(s). In the event of any inconsistency between these Terms and Conditions, and the Invoice and/or Delivery memo, the Terms and Conditions shall control and take precedence.
- Definitions. "You" means the Client. "Surf Images" means the website www.surfimages.com owned by Jack English and/or any individual rights held by Jack English. "Image" means any image and associated material provided by or on SURF IMAGES. "Digital Image" means any Image provided in digital format. "Film-based Image" means any positive or negative transparency, slide or print. "CD" means any CD-ROM containing Images. "Invoice" means a physical or electronic invoice that grants usage rights for a stated fee to an Image identified by Image Number.
- Acceptance. You will be deemed to have accepted the entirety of the Agreement upon your: a) using SURF IMAGES's online systems or website; b) receipt of an Image; c) using a CD; and/or d) paying any fee.
- Grant. Upon issuance of an Invoice, SURF IMAGES will grant you a non-transferable license (a "License") strictly limited to the Invoice's express terms and conditioned upon: a) your acceptance of all the terms of the Agreement; b) your obtaining all necessary releases and permissions; and c) your timely payment of all fees. No License shall be granted, and any previously granted License terminated, upon your failure to agree to, or your breach of, any terms of the Agreement. SURF IMAGES reserves all rights not expressly granted.
- Unlicensed Use. Without a License, Images are provided solely for your review, and you may not tamper with or remove a Film-based Image from its mount or sleeve (subject to a $250 fee). If you make, or if you knowingly or negligently permit any third party to make, any unauthorized use of an Image including a use that exceeds your License, you will be liable for three times the market value of such use, plus reasonable legal fees and costs. This paragraph shall not limit any other rights or remedies of SURF IMAGES.
- Restrictions on Use. Unless stated in writing, Images are licensed with no rights protection on a non-exclusive basis. Usage is strictly limited as specified in these Terms and Conditions. Except as permitted in writing, you may not prepare derivative works or composite images; or license, sublicense or transfer any right to any Image.
- Payment. Payment is due upon receipt of Invoice. Payments later than 30 days from receipt are subject to late fees of the lesser of 2% percent per month or the maximum legal rate.
- Returns, Holding Fees, Damaged Images. Client assumes all risk for all Images from time of receipt by Client to time of actual receipt of returned photographs by SURF IMAGES. Client agrees to return all such material in undamaged, unaltered and un-retouched condition within thirty (30) days of receipt, or such other period as is stated in writing herein. Client agrees to destroy all Digital Images within one week of reproduction. If the Images were sent as Film-based Images or CDs, all such material must be returned in undamaged condition within thirty (30) days of receipt.. A holding fee $5 per week will be charged for each Image not returned, or destroyed or erased with written confirmation, as required. In the event of any such loss or damage to the Images, you agree to reimburse SURF IMAGES the following fair and reasonable values as liquidated damages: $2,500 for each original Film-based Image; $200 for each duplicate Film-based Image; and $4,000 for each original Film-based Image that has appeared in a catalog.
- Unreturned or Damaged Images. Images (slides and or negatives), CD’s and digital Images must be carefully maintained and, returned at your expense. Upon receipt of a Film-based Image by you or your agent (including any delivery service engaged by you) and until its return, you shall be strictly liable as an insurer for its non-return or damage. In the event of any such loss, you agree to reimburse SURF IMAGES the following fair and reasonable values as liquidated damages: $2,500 for each original Film-based Image; $200 for each duplicate Film-based Image; and $4,000 for each original Film-based Image that has appeared in a catalog.
- Ownership. The Images are the property of SURF IMAGES. You shall not acquire any right, title or interest to any Image, CD or portion thereof, except as expressly granted in writing.
- Copyright Notice. Images published for editorial, educational or non-promotional use shall include a copyright notice in the format provided. If none is provided, SURF IMAGES will provide upon request. If you omit such notice, you shall pay liquidated damages of triple the stated License fee.
- Trademarks.Except as part of required copyright notices, you may not use SURF IMAGES's trade, slogans, and service marks without written consent. You may not use any Image or portion thereof as a trade or service mark.
- Releases. No releases exist unless stated in writing or provided by SURF IMAGES. NOTWITHSTANDING THE FOREGOING, SURF IMAGES DISCLAIMS ALL WARRANTIES CONCERNING THE VALIDITY OF ALL RELEASES. IF SURF IMAGES ERRONEOUSLY ASSERTS THE EXISTENCE, SCOPE OF OR VALIDITY OF A RELEASE, SURF IMAGES'S LIABILITY IS LIMITED TO THE USAGE FEE PAID FOR THE APPLICABLE IMAGE. You are solely responsible for and shall obtain necessary releases concerning the subject matter of the Images and the rights to any proprietary material depicted therein. SURF IMAGES grants no rights until you obtain all necessary releases, and you will provide proof thereof upon request.
- Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN WRITING, SURF IMAGES DISCLAIMS ALL IMPLIED OR EXPRESS WARRANTIES CONCERNING ANY IMAGE AND CONCERNING SURF IMAGES'S ONLINE SYSTEMS OR WEBSITES INCLUDING WITHOUT LIMITATION:
- A) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF UNINTERRUPTED SERVICE;
- B) WARRANTIES CONCERNING AN IMAGE'S SUBJECT MATTER OR UNDERLYING RIGHTS TO PROPRIETARY MATERIAL DEPICTED THEREIN;
- C) WARRANTIES CONCERNING THE ACCURACY OR VALIDITY OF ANY RELEASES, CAPTIONS OR OTHER INFORMATION PROVIDED WITH AN IMAGE;
- D)WARRANTIES CONCERNING THE USE OF NAMES, TRADE OR SERVICE MARKS, LOGOS, DESIGNS OR WORKS OF ART DEPICTED IN ANY IMAGE;
- E) WARRANTIES CONCERNING THE FORMATTING OF A DIGITAL IMAGE. YOUR SOLE AND EXCLUSIVE REMEDY FOR RECEIPT OF A DEFECTIVE DIGITAL COPY IS THE REPLACEMENT OF THE DIGITAL COPY OR REFUND OF FEE, AT SURF IMAGES'S OPTION.
- Indemnification. You may not use any Image in any manner, or in connection with any material, that is unlawful, defamatory, obscene, pornographic or that infringes any trade or service marks, rights of privacy or publicity, or other rights of third parties. You will indemnify, defend and hold harmless SURF IMAGES, specifically including Jack English, its affiliates, suppliers, and their agents (collectively, "Affiliates") against all claims, liabilities, damages, costs and expenses, including reasonable legal fees, arising from or relating to: a) any breach by you of the Agreement; b) any alteration or unauthorized use by you of any Image; c) any claim of infringement of a third party's right to privacy or publicity, where I) SURF IMAGES has not expressly asserted in writing the existence of a release; or ii) your use exceeds the use permitted by any existing release.
- Limitation Of Liability. NEITHER SURF IMAGES NOR ITS AFFILIATES SHALL BE LIABLE FOR:
- A) ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THE USE OR LICENSE OF ANY IMAGE OR CD, EVEN IF SURF IMAGES OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR B) FOR ANY DAMAGES WHATSOEVER FOR THE USE, OR INABILITY TO USE, ANY ROYALTY-FREE IMAGE OR CD. IN NO EVENT SHALL SURF IMAGES'S OR ITS AFFILIATES LIABILITY FOR ANY CLAIM WHATSOEVER EXCEED THE SUM PAID BY YOU TO SURF IMAGES FOR THE USE OF THE RESPECTIVE IMAGE. Some disclaimers and Limitations of liability might not apply to you to the extent they are not permitted by local law.
- Condition of Images.You agree to carefully examine each Image or scan for physical defects before use or reproduction. NEITHER SURF IMAGES NOR ITS AFFILIATES SHALL BE LIABLE FOR ANY LOSS OR DAMAGE TO YOU OR ANY THIRD PARTY ARISING FROM ANY PHYSICAL DEFECT IN ANY IMAGE, CAPTION OR SCAN IN CONNECTION WITH USE OR REPRODUCTION
- Miscellaneous. SURF IMAGES may upon reasonable notice inspect your records to ensure compliance hereof. The Agreement inures to the benefit of and is binding upon the parties and their heirs, successors, assigns, and representatives. No failure of a party to exercise or enforce rights hereunder will act as a waiver of those rights. The Agreement contains all the terms of the agreement between the parties concerning its subject matter, and it supersedes any prior agreement. The Agreement may only be modified, or any rights under it waived, by a writing executed by the party against whom such modification or waiver is asserted. The Agreement shall be governed by California law without regard to choice of law principles. The parties consent to the exclusive jurisdiction of the courts located within San Diego County to resolve any disputes arising hereunder. You shall be responsible for SURF IMAGES's reasonable attorney's fees, witness fees, and other costs arising from your breach of the Agreement. Any invalidity or unenforceability of any provision hereof shall not modify or affect any other term or provision. Headings are for convenience only and shall not be used to construe the Agreement. You may not assign the Agreement or transfer any right to use an Image. Time is of the essence in the performance of your obligations under the Agreement.