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TERMS AND CONDITIONS OF USE AND LICENSE AGREEMENT – PHO-ARTS VISUAL IMAGES & DESIGNS


Except as specifically granted in this Agreement, the ability to access Content from Pho-Arts Visual Images & Designs  Stock does not allow you to use that Content. Please read this Agreement carefully to determine what you may and may not do with the Content, especially as it relates to model and property releases, copyrights, and permitted and restricted uses.

Downloading and/or using any Content from Pho-Arts Visual Images & Designs Stock confirms your acceptance of this Agreement.

THIS LICENSE AGREEMENT IS A LEGAL AND BINDING AGREEMENT ("AGREEMENT") BETWEEN YOU THE USER ("LICENSEE") AND PHO-ARTS VISUAL IMAGES & DESIGNS, DOING BUSINESS AS PHO-ARTS VISUAL IMAGES & DESIGNS.

THE TERM "LICENSEE" INCLUDES THE INDIVIDUAL AND COMPANY REGISTERED TO THE ACCOUNT THROUGH WHICH THE IMAGERY IS PURCHASED, OR THE CLIENT OR PRINCIPAL IF AN AGENT IS ACTING ON BEHALF OF THE CLIENT OR OTHER THIRD PARTY AND PROVIDED THAT AGENT AND CLIENT OR PRINCIPAL AGREE TO THE TERMS OF THIS AGREEMENT AND ARE JOINTLY AND SEVERALLY LIABLE TO COMPANY UNDER THE AGREEMENT. IF YOU ARE OBTAINING IMAGE REPRODUCTION RIGHTS ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY AND RIGHT TO BIND THAT COMPANY TO THE TERMS OF THIS AGREEMENT.

IF YOU ARE AN INTERMEDIARY SUCH AS AN ADVERTISING AGENCY OR FREELANCE PHOTO EDITOR OR RESEARCHER, THE IMAGERY MUST ONLY BE USED BY ONE CLIENT, WHO IS BOUND BY THE TERMS OF THIS AGREEMENT. AN ADDITIONAL LICENSE IS REQUIRED FOR USE OF THE SAME IMAGERY BY AN ADDITIONAL CLIENT.

PHO-ARTS VISUAL IMAGES & DESIGNS reserves the right to alter or update these terms at any time and you agree to be bound by such alterations or updates.

1. Licensed Imagery

a. Imagery means any still image, film or video footage, generated optically, electronically, digitally or by any other means, including any negatives, transparencies, film imprints, prints, original digital files or any reproductions thereof, regardless of the form in which it is delivered. Licensed Imagery means any imagery for which a license has been purchased for a limited number of uses as described in the invoice accompanying the purchase of the license.

b. Comp Use:

PHO-ARTS VISUAL IMAGES & DESIGNS grants you a personal, nontransferable, nonexclusive license to copy the Imagery you have selected onto your computer hard drive and to use the Imagery and any derivative works or copies on one computer and with one user at a time only in the country (s) agreed upon within the invoice. The Imagery may only be copied, modified and incorporated in materials for sample use including comprehensive layouts ("comp use"). The Imagery may not be used in any final materials distributed internally or to the public. All other rights are reserved to PHO-ARTS VISUAL IMAGES & DESIGNS. You must contact PHO-ARTS VISUAL IMAGES & DESIGNS to obtain a license for additional use.

c. Other than the above Comp Use, Imagery may not be used in any way, until an invoice indicating User's right to use same is paid in full unless other payment arrangements have been made. LICENSEE may not create any derivative use of Rights Managed Imagery unless indicated on the invoice. LICENSEE may not use the Imagery to promote the sale of imagery in competition with PHO-ARTS VISUAL IMAGES & DESIGNS.

2. Copyright Notice and Artist/Photo Credits

LICENSEE acknowledges that providing credit for Imagery creators is a material aspect of this Agreement. LICENSEE agrees that for editorial usage, a credit line in the form of "© LEONA ARSENAULT WWW.PHOARTS.COM" will be included adjacent to each image. LICENSEE agrees to supply PHO-ARTS VISUAL IMAGES & DESIGNS two (2) sample copies of each use, when practical.

For commercial and theatrical use, LICENSEE agrees to provide credit according to customary industry practices for the usage.

LICENSEE agrees at minimum to pay an additional 100% of the License value if the credit and copyright notice is not given in editorial use or in commercial use when appropriate.

3. Copyright Infringement

PHO-ARTS VISUAL IMAGES & DESIGNS grants no rights and makes no warranties with regard to the use of names, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Licensed Imagery. LICENSEE must satisfy itself that all the necessary rights or consents regarding any of the above, as may be required for reproduction, have been obtained.

PHO-ARTS VISUAL IMAGES & DESIGNS reserves the right to monitor for copyright infringements.

4. Product Endorsement or Sensitive Use Disclaimer

If any Imagery featuring a model is used in a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service, or if the depiction of the model is used in connection with a subject that would be unflattering, embarrassing or unduly controversial to a reasonable person, LICENSEE must accompany each such use with a conspicuous statement that indicates that the person is a model and the Imagery is being used for illustrative purposes only. These requirements are without prejudice to the obligations of COMPANY regarding use of the Imagery contained elsewhere throughout this Agreement.

5. Model and Property Releases

Releases are available, upon request, for Imagery captioned as containing model or property releases. Unless specifically noted in the caption information, no release has been obtained. Names are removed to protect the privacy of the model. Other than model releases for recognizable persons, PHO-ARTS VISUAL IMAGES & DESIGNS grants no rights and makes no warranties with regard to the use of names, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Imagery. LICENSEE must satisfy itself that all the necessary rights or consents regarding any of the above, as may be required for reproduction, have been obtained. PHO-ARTS VISUAL IMAGES & DESIGNS recommends consulting legal council as to the need for releases for a specific use as there can be liability to LICENSEE even though a model or property release has been obtained.

6. Indemnity

LICENSEE agrees to defend, indemnify and hold PHO-ARTS VISUAL IMAGES & DESIGNS and its photographer (s), directors and employees harmless from all damages, liabilities and expenses (including attorneys' fees and costs), arising out of or as a result of claims by third parties relating to LICENSEE's use of any Imagery outside the scope of this Agreement or any other breach by LICENSEE of this Agreement.

7. Warranties and Limitation of Liability

PHO-ARTS VISUAL IMAGES & DESIGNS represents that it has the right to grant the license herein.
PHO-ARTS VISUAL IMAGES & DESIGNS makes no warranties with regards to the accuracy of imagery metadata including but not limited to keywords and captions.

DIGITAL FILES ARE PROVIDED "AS IS." PHO-ARTS VISUAL IMAGES & DESIGNS MAKES NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDED BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, QUALITY OF IMAGE, OR COMPATIBILITY WITH ANY COMPUTER HARDWARE OR OTHER EQUIPMENT, OPERATING SYSTEM OR SOFTWARE PROGRAM.  PHO-ARTS VISUAL IMAGES & DESIGNS MAKES NO REPRESENTATION OR WARRANTIES THAT THE USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE. THE USE OF THIS SITE IS AT YOUR OWN RISK.

PHO-ARTS VISUAL IMAGES & DESIGNS shall incur no liability for negligence, or otherwise, in regard to the use of any Images, the caption information or metadata or any breach of this Agreement, except for acts of gross and willful negligence. All warranties, express or implied, are expressly disclaimed and excluded.

LICENSEE may have additional rights under state law.

LICENSEE warrants that it will use its best efforts to protect the Imagery from improper usage.
LICENSEE agrees to maintain firewalls and other security measures to prevent the accidental or intentional theft, misappropriation or unauthorized copying of the imagery.

8. Confidentiality

LICENSEE acknowledges that certain information such as pricing and special licensing considerations granted to LICENSEE are valuable trade secrets and will not be disclosed to any other parties without prior written consent of PHO-ARTS VISUAL IMAGES & DESIGNS .

9. Payment Terms

No licenses are granted until full payment of PHO-ARTS VISUAL IMAGES & DESIGNS’s invoice is received. Unless credit terms have specifically been agreed to directly between PHO-ARTS VISUAL IMAGES & DESIGNS and LICENSEE, payment of PHO-ARTS VISUAL IMAGES & DESIGNS”s invoices must be received prior to the publication or other use of any Licensed Imagery. LICENSEE agrees to pay  PHO-ARTS VISUAL IMAGES & DESIGNS  a service charge of 1.5% per month on any unpaid balance after the first use of the Licensed Imagery. Any disputes concerning the invoice must be submitted in writing, within 10 business days of the invoice date, or the LICENSEE shall be deemed to have accepted the invoice as issued. LICENSEE is responsible for paying any collection fees charged to PHO-ARTS VISUAL IMAGES & DESIGNS to collect past due amounts.

In the event of a conflict between the terms of this Agreement and any purchase order or other communication from LICENSEE, the terms of this agreement shall prevail.

Upon reasonable notice, PHO-ARTS VISUAL IMAGES & DESIGNS may, at its discretion, either through its own employees or through a third party, audit LICENSEE'S records directly related to this Agreement and use of Licensed Imagery in order to verify compliance with the terms of this Agreement.

10. Copyright Infringement and Liquidated Damages

In the event that the LICENSEE utilizes any Imagery without or prior to the granting of a license, PHO-ARTS VISUAL IMAGES & DESIGNS reserves the right to seek damages through legal channels unless the LICENSEE agrees to reimburse PHO-ARTS VISUAL IMAGES & DESIGNS, as liquidated damages, a sum equal to a minimum of five (5) times the market value price charged for such use of a Imagery.

If the LICENSEE fails to make the payment as outlined above, within five (5) days of PHO-ARTS VISUAL IMAGES & DESIGNS’s invoicing such fee, this liquidated damage provision shall be void and PHO-ARTS VISUAL IMAGES & DESIGNS reserves the right to file suit for copyright infringement, including attorneys' fees and all associated costs.

11. Termination

The license contained in this Agreement will terminate automatically without notice from PHO-ARTS VISUAL IMAGES & DESIGNS fails to comply with any provision of this Agreement. Upon termination, LICENSEE must immediately (i.) stop using the Imagery , (ii.) destroy or, upon the request of PHO-ARTS VISUAL IMAGES & DESIGNS , return the Imagery to PHO-ARTS VISUAL IMAGES & DESIGNS , and (iii.) delete or remove the Imagery from LICENSEE'S premises, computer systems, back-ups, and storage (electronic or physical).

12. Revocation

PHO-ARTS VISUAL IMAGES & DESIGNS reserves the right to revoke the license to use any Imagery for good cause and elect to replace such Imagery with alternate Imagery. Upon notice of any revocation of a license for any Imagery, LICENSEE shall immediately cease using such Imagery, shall take all reasonable steps to discontinue use of the revoked Imagery in products that already exist and shall inform all end-users and clients of same. The replacement Imagery is subject to the terms and conditions of this Agreement.

13. 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 reformed only to the extent to make it enforceable.

14. Choice of Law/Attorney's fees

This Agreement will be governed in all respects by Canadian laws, without reference to its laws relating to conflicts of law. LICENSEE agrees that the Canadian Court are the agreed and appropriate forums for any such suit, and consent to service of process by registered mail or overnight courier with proof of delivery. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. If PHO-ARTS VISUAL IMAGES & DESIGNS is obligated to go to court to enforce any of its rights, the LICENSEE agrees to reimburse PHO-ARTS VISUAL IMAGES & DESIGNS for its legal fees and disbursements if PHO-ARTS VISUAL IMAGES & DESIGNS is successful.

15. Waiver

No action of PHO-ARTS VISUAL IMAGES & DESIGNS , other than express written waiver, may be construed as a waiver of any provision of this Agreement.

16. Entire Contract

This contract 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 writing sent by LICENSEE, the terms of this Agreement shall govern.

17. Rights Surviving after Termination

The following provisions of this Agreement will remain in effect notwithstanding the termination of this Agreement for any cause: License and Ownership, Copyright Infringement, Product Endorsement or Sensitive Use Disclaimer, Warrantees and Limitations of Liability, Indemnity, Payment Terms, Termination, and Choice of Law/Attorney's fees.

18. Ownership of this Website

This website is owned and operated by PHO-ARTS VISUAL IMAGES & DESIGNS and by photographer Leona Arsenault. All elements of the site, including the content and the general design are protected by copyright, trademark, trade dress and other Canadian and international laws or treaties relating to intellectual property.

Linked sites are not under PHO-ARTS VISUAL IMAGES & DESIGNS’s control and PHO-ARTS VISUAL IMAGES & DESIGNS is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. PHO-ARTS VISUAL IMAGES & DESIGNS is not responsible for web-casting or any other form of transmission received from any linked site. Links are provided to you only as a convenience. PHO-ARTS VISUAL IMAGES & DESIGNS does not endorse the linked sites or their use or contents.

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