1. Background of Agreement
This is a legal agreement between any photographer intending to submit photographers to the Site (in this agreement referred to as “you” or the “Supplier”) and Wildlife-Photography.com, the operator of the Site. The Supplier wishes to appoint Wildlife-Photographer.com as its non-exclusive agent to license, sublicense and distribute Content (as defined below) produced by the Supplier on the terms and conditions set forth in this Agreement, as such agreement may be amended from time to time or modified for certain clients consistent with the rights granted herein (the “Content Download License Agreement”), or any distribution partner license agreement provided that such agreement is consistent with rights granted to Wildlife-Photography.com herein.
Upon accepting the terms of this Agreement, you may submit photographs to Wildlife-Photography.com.
his is a fairly lengthy document, and it contains many important provisions that affect your rights and obligations. By submitting images to us you thereby agree to be bound by the terms of this Agreement. We encourage you to print a copy of the Agreement for your records.
This Agreement remains in full force and effect until terminated in accordance with its terms. If at any time the terms and conditions of this Agreement are no longer acceptable to the Supplier, you must follow the termination procedures set forth below under “Term and Termination”.
2. Provision of Content
The parties acknowledge that the Supplier may, from time to time, provide photographs and supporting text to Wildlife-Photography.com using the submit procedures of the Site or such other procedures as the parties may mutually agree (collectively, “Content”)together with (iii) descriptive and other information relating to such Content or otherwise required to enable Wildlife-Photography.com to realise the commercial potential of the rights granted in the Content ("Descriptive Information"). Wildlife-Photography.com, in its sole discretion, may determine which of such Content is suitable for posting on the Site or other means of distribution, and only such Content as it deems suitable will be considered “Accepted Content” for the purposes of applicable provisions of this Agreement.
In addition to the terms of this Agreement, the parties acknowledge that the provision of all Content is subject to the policies and procedures outlined in the Site, the terms of which are incorporated by reference into this Agreement. Any breach of the rules relating to acceptable Content outlined in the Site will be deemed to be a breach of this Agreement.
3. Grant of Authority
The Supplier hereby appoints Wildlife-Photography.com as Supplier's non-exclusive agent and distributor to sell, license or sublicense Content to third parties within the jurisdictions of Wildlife-Photography.com's business and to collect and remit funds in connection with those endeavours on the terms set forth in this Agreement. For all Content, Supplier grants Wildlife-Photography.com:
The right to use, reproduce, distribute, redistribute, sublicense, publish, republish, upload, post, transmit, crop, package, repackage, produce and sell prints or similar image products or publicly perform or display Content to prospective licensees: (i) through the Site; (ii) through other venues owned or operated by Wildlife-Photography.com or its affiliates from time to time, and (iii) through third party distributors and alliance or channel partners of Wildlife-Photography.com; and
The right to grant perpetual, world-wide, non-exclusive and non-transferable licenses or sub-licenses to end-users in accordance with the terms of the Content Download License Agreement.
The Parties agree that all rights, including title and copyright, in and to the uploaded Accepted Content will be retained by the Supplier, and no title or copyright is transferred or granted in any way to Wildlife-Photography.com or any third party except as provided in this Agreement and any license agreements, which Wildlife-Photography.com is authorised to enter into on the Supplier's behalf
4. Intellectual Property Matters
The Supplier acknowledges that Wildlife-Photography.com prohibits any Content or any other material that infringes on any patent, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded to the Site.
By uploading Content, you are warranting that you own all proprietary rights, including copyright, in and to the Content with full power to grant the rights contemplated to be provided in the Content Download License Agreement or distribution partner license agreements.
The Supplier agrees that neither Wildlife-Photography.com nor any of its owners, employees, partners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Content or Descriptive Information, or any error, omission or other matter relating to Content or Descriptive Information.
Wildlife-Photography.com agrees to pay a portion of the fees collected in respect of Accepted Content that is downloaded or otherwise purchased by end-users according to the rate of Wildlife-Photography.com retaining a 40% commission on the gross value of all sales. If at any time the Rate Schedule is not acceptable to the Supplier, you may refrain from providing additional Content or terminate this Agreement in accordance with its terms.
In response to a written request, Wildlife-Photography.com will endeavour to make payment of fees in respect of purchased downloads of Accepted Content on a monthly basis in the month following the purchase of Accepted Content, provided such fees aggregate a minimum of GBP£50, failing which fees owing will be retained until they exceed such minimum. In all cases, payment of fees to the Supplier will be net of: (i) applicable taxes or other withholdings required by applicable law; (ii) bad debts or other uncollectible sums; (iii) legal and other reasonable fees incurred in enforcing this Agreement or the agreements contemplated herein; (iv) where purchases or licenses are by other than the credit system, fees payable to financial institutions for the processing of any credit card, debit card, e-cheque or alternative payment method; and (v) any amounts owing by the Supplier to Wildlife-Photography.com under this Agreement or otherwise.
Without limiting the generality of the foregoing, Wildlife-Photography.com is entitled to set-off against any amount owing to Supplier, all amounts to which Wildlife-Photography.com is or may be entitled under this Agreement or otherwise at law, including withholding amounts as security for any pending or threatened claim relating to any matter which is the subject of a representation, warranty or indemnity of Supplier under this Agreement.
The parties further agree that Wildlife-Photography.com shall not be required to pay royalties or fees to the Supplier if Wildlife-Photography.com is restrained or otherwise prevented from using rights granted under this Agreement relating to Content because those rights are found to be an infringement or contravention of the intellectual or other property rights of a third party.
In the event Wildlife-Photography.com facilitates a sale or license of Content that requires an amendment to the standard Content Download License Agreement to facilitate such transaction, Wildlife-Photography.com shall be entitled to deduct a reasonable administration fee relating to such sale or license, in addition to its share of the revenue relating to such sale.
6. Managing Content
Wildlife-Photography.com reserves the right to delete, move, refuse to accept or edit any Content or Descriptive Information that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or is otherwise unacceptable in its discretion, and you hereby agree to forfeit any fees payable in respect of such Content to Wildlife-Photography.com or as it may direct. Wildlife-Photography.com shall have the right but not the obligation to correct any errors or omissions in any Content or Descriptive Information, as it may determine in its sole discretion. You acknowledge that any screening of Content performed by Wildlife-Photography.com to determine Accepted Content is done as a courtesy only.
You acknowledge that the Content you provide pursuant to this Agreement that becomes Accepted Content may be purchased or licensed by customers of Wildlife-Photography.com with the intention that such licensees will adhere to the terms of the Content Download License Agreement or any distribution partner license agreement. Wildlife-Photography.com cannot take responsibility for the compliance by purchasers and licensees of the terms of such agreements, and you acknowledge and agree to the possibility of Content being used in a manner that is not contemplated in this Agreement or the Content Download License Agreement or any distribution partner license agreement. You also agree that notwithstanding any rights you may have to pursue the licensees of such Content at law, Wildlife-Photography.com shall have no liability to you or any person claiming through you for any breach by a licensee of the terms of any agreement respecting Accepted Content. Wildlife-Photography.com will use commercial efforts to assist in the protection of your intellectual property rights, at your request and expense.
8. Confidential Information
The Supplier acknowledges that the Confidential Information (defined below) which it obtains through the entering into of this Agreement, the use of the Site and the provision of Content constitutes valuable, confidential, proprietary information of Wildlife-Photography.com and its licensors, and agrees that during the term of this Agreement and thereafter it shall not, without the express written consent of Wildlife-Photography.com, use or disclose to any other person any such Confidential Information, except as specifically authorised under this Agreement.
For the purposes of this Agreement, “Confidential Information” means any and all data, information, documents, software or materials relating to the business and management of Wildlife-Photography.com, its photographers, affiliates, licensors or licensees, that is designated as confidential or ought reasonably to be considered confidential, including but not limited to: their business model and operations, processes, products, designs, pricing, promotions, business plans, business opportunities, alliances, Content, graphics, documentation, finances, research, development, know-how, trade-secrets, training materials, personnel, identities or personal information of any kind pertaining to members, clients, methodologies, Site content belonging to others and other intellectual property.
9. Representations and Warranties
The Supplier hereby represents and warrants as follows:
The Supplier has the legal capacity and authority to enter into this Agreement, is the sole and exclusive owner of the Content, has the right to grant all of the license rights contemplated to be provided under this Agreement, and has not granted any rights or licenses to any Content or any other intellectual property or technology that would conflict with this Agreement;
No portion of the Content as delivered to Wildlife-Photography.com from time to time, contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement, and all Content will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Site or the Content or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Content or the Site in any way;
The Content will include all necessary Descriptive Information to enable its effective marketing on the Site, which Descriptive Information will be complete and accurate in all material respects and will not include false, misleading or inapplicable metadata intended to or which has the effect of keyword “doping” or improperly altering search results that would otherwise be applicable to such Content; and
The Content delivered to Wildlife-Photography.com hereunder represents original creations and expressions of subject matter, and no Content or Descriptive Information infringes any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defames or casts into disrepute in any manner any third party.
You represent and warrant that you shall not: (i) license your own Content (except occasionally and then only for legitimate creative purposes); or (ii) predominately license the content of only a few contributors. You agree that you will not collude with another Wildlife-Photography.com photographer to have that member do either of (i) or (ii) above for your benefit. You acknowledge that genuine customers typically license files from many contributors and you agree that your subscription licensing behaviour will conform to this typical conduct. In addition to any other available remedies, if you breach this paragraph Wildlife-Photography.com may immediately terminate this Agreement and/or, if applicable. You further agree to forfeit any royalties earned by you in connection with your misconduct.
You agree to indemnify, defend and hold Wildlife-Photography.com and its affiliates, and their respective owners, employees, shareholders, agents and licensees of Content (collectively, the “Wildlife-Photography.com Parties”) harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any Wildlife-Photography.com Party as a result of or in connection with: (i) any use or alleged use of the Site or provision of Content under your Member Name by any person, whether or not authorised by you; (ii) or resulting from any communication made or Content uploaded under your Name; (iii) any breach by you of this Agreement; or (iv) any claim threatened or asserted against any Wildlife-Photography.com Party to the extent such claim is based upon a contention that any of the Content used within the scope of this Agreement infringes any copyrights, trade secrets, trademarks, right of privacy or publicity, or other intellectual property rights of any third party.
Wildlife-Photography.com reserves the right, at your expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Wildlife-Photography.com defence of such claim.
The Supplier agrees that Wildlife-Photography.com shall have the right to determine whether and to what extent to proceed against a licensee or other third party (an "Infringer") for any violation of the Content Download License Agreement, or other license agreement or alleged infringement of other rights of the Supplier. The Supplier hereby releases Wildlife-Photography.com from any and all claims the Supplier might have, either directly or indirectly, arising out of or in connection with a determination by Wildlife-Photography.com to proceed or not to proceed against any Infringer in any instance. Wildlife-Photography.com hereby agrees that any monetary recovery it receives as a result of any legal or enforcement action taken against any such Infringer, to the extent such monies are intended to compensate Wildlife-Photography.com for lost licensing fees or statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable counsel and experts' fees and disbursements on a solicitor and client basis) incurred by or on behalf of Wildlife-Photography.com in connection with such action, be divided between the Supplier and Wildlife-Photography.com pursuant to the provisions of the Compensation section above. In the event Wildlife-Photography.com elects not to proceed against an Infringer, the Supplier shall have the right to proceed against such Infringer for such license violation or infringing action. The Supplier hereby agrees that any monetary recovery it receives as a result of any legal action taken against any such Infringer, to the extent such monies are intended to compensate the Supplier for lost licensing fees or include statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable counsel and experts' fees and disbursements on a solicitor and client basis), be divided between the Supplier and Wildlife-Photography.com pursuant to the provisions of the Compensation section above.
11. Term and Termination
This Agreement is effective until terminated. You may terminate this Agreement at any time by giving thirty (30) days written notice to Wildlife-Photography.com using picturedesk@Wildlife-Photography.com with confirmation of your identity and your intention to terminate. Wildlife-Photography.com may also terminate this Agreement for any reason by giving you thirty (30) days notice by e-mail at the last address contained in your submission information. If Wildlife-Photography.com terminates your membership, such termination shall be deemed to be notice of termination of this Agreement, as well.
Either party may terminate this Agreement upon written notice effective immediately upon being sent to the last address included on the Site, if the other party (i) liquidates all or substantially all of its assets, dissolves as a corporation other than through inadvertence, or otherwise ceases to do business in a material way, or (ii) makes an assignment for the benefit of creditors, or (iii) files a petition in bankruptcy, petitions or applies for a receiver or trustee for all or any substantial part of its property and such receiver or trustee is appointed, or commences, or has commenced against it, a proceeding under any bankruptcy, reorganisation, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, any of which shall remain in force for a period of thirty (30) days or more, or (iv) is adjudicated insolvent or bankrupt, or (v) is in breach of this Agreement.
12. Effect of Termination
Upon the termination of this Agreement, the grant of authority given to Wildlife-Photography.com shall cease subject to the following conditions: (i) Wildlife-Photography.com shall remove Accepted Content from the Site and distribution partners within thirty (30) days of the termination of this Agreement; (ii) notwithstanding termination, Wildlife-Photography.com and its distribution partners shall have the right to continue licensing Accepted Content until it is removed from the Site or other sites where Accepted Content is distributed; and (iii) regardless of the expiration or termination of this Agreement, Wildlife-Photography.com will continue, in accordance with this Agreement, to pay compensation due to the Supplier in respect of licenses granted to members during any transitional period, subject to any rights of set-off under this Agreement or at law.
Upon termination, Wildlife-Photography.com will be entitled to retain all amounts owing to the Supplier for a period of thirty (30) days to determine any applicable rights of set-off, and shall be entitled to deduct from such amounts, a reasonable administrative fee for establishing, managing and terminating your account.
Notwithstanding any other provision in this Agreement, the termination or expiration of this Agreement shall not alter or affect the rights granted to licensees or sub-licensees by Wildlife-Photography.com pursuant to this Agreement.
13. DISCLAIMER OF WARRANTIES
THE SITE, INCLUDING ANY CONTENT CONTAINED THEREIN, ARE PROVIDED BY WILDLIFE-PHOTOGRAPHY.COM “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WILDLIFE-PHOTOGRAPHY.COM DOES NOT REPRESENT OR WARRANT THAT THE SITE OR THE CONTENT WILL BE MADE AVAILABLE FOR SALE OR LICENSE OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE.
WILDLIFE-PHOTOGRAPHY.COM DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE SITE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
14. LIMITATION OF LIABILITY
YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN.
IN NO EVENT SHALL WILDLIFE-PHOTOGRAPHY.COM OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WILDLIFE-PHOTOGRAPHY.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
IN ANY EVENT, WILDLIFE-PHOTOGRAPHY.COM'S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE SITE OR THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED BY WILDLIFE-PHOTOGRAPHY.COM FOR THE CONTENT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED ONE THOUSAND (£1,000.00)BRITISH POUNDS.
SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF WILDLIFE-PHOTOGRAPHY.COM OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
15. Applicable law
The Site is controlled, operated and administered by Wildlife-Photography.com from within the United Kingdom. The Site can be accessed from all provinces and territories, as well as from other countries around the world. As each of these jurisdictions has laws that may differ from those of the United Kingdom, you acknowledge and agree that this Agreement will be governed under the UK laws. You hereby irrevocably submit to the exclusive jurisdiction of the Courts of the United Kingdom with respect to the subject matter of this Agreement. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
You agree to waive any right you may have to (i) trial by jury; and (ii) to commence or participate in any class action against Wildlife-Photography.com related to the Site, this Agreement or any agreements contemplated hereby.
Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be submitted to arbitration under UK Law.
If Wildlife-Photography.com is obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, you agree to reimburse Wildlife-Photography.com for its legal fees, costs and disbursements if Wildlife-Photography.com is successful.
You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed any other agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Agreement you agree to be bound by them.
Wildlife-Photography.com's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
This Agreement is personal to you and is binding upon your heirs, executors and legal representatives, as the case may be, and is not assignable by you without Wildlife-Photography.com prior written consent. Wildlife-Photography.com may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
This Agreement can be amended by the written agreement of the parties or by Wildlife-Photography.com posting amendments on the Upload portion of the Site. Continued provision of Content or failure to terminate this Agreement within thirty (30) days of posting of such amendment will be deemed to be acceptance of the amendment by the Supplier and it will be incorporated by reference into this Agreement.
The parties have requested that this Agreement and all related documents be drawn up in English.
If you have concerns relating to this Agreement, please contact picturedesk@Wildlife-Photography.com
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF WILDLIFE-PHOTOGRAPHY.COM AGREEING TO PROVIDE A MEANS FOR THE SALE OR LICENSE OF YOUR ACCEPTED CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND WILDLIFE-PHOTOGRAPHY.COM, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND WILDLIFE-PHOTOGRAPHY.COM RELATING TO THE SUBJECT OF THIS AGREEMENT.