These terms govern your use of our website and services such as uploading and downloading content onto or from the website and our affiliates’ websites that are integrated with this website (collectively, the "Website"; each uploaded or downloaded photograph, illustration, image, or other pictorial or graphic work is referred to as "Work"; the available services on the Website is collectively referred to as "Services"). By using the Services or the Website, you agree to these terms. If you have entered into another agreement with us concerning specific Services, then the terms of that agreement control where it conflicts with these terms. If you use our Website and Services on behalf of an entity, then these terms apply to that entity and its affiliates. In such case, you represent and warrant that you have the authority to bind the entity to these terms.
1. Description of the Website Top
1.1 General Description. The Website includes an online marketplace for uploading and downloading Works. Furthermore, the Website is divided generally into two sections: a public section and a private section. The public section offers to all visitors, among other things, general information about the Website, the ability to view and search for Works on the Website and the ability to view and post comments on our official web log and forum. The private section is only accessible by Members. The private section offers to Members (in addition to all services available in the public section) the ability to access our affiliate tools or to upload and download Works.
1.2 Registration. Each visitor may register to become a registered member ("Member") by creating an account with us. During registration, each Member may accept a default country designation (with the pre-determined language and currency designations to correspond to such country) based on the IP address from which the Member is accessing the Website. We may allow each Member to specify a country other than the default country (but with the pre-determined language and currency to correspond to such other country). Once the information is entered during registration, the information cannot be revised later. The Member must also specify whether she is registering as an individual or on behalf of a company or entity (and, if so, the name of the company or entity).
1.3 Upload. Any Work uploaded by Members must be done through their own account, and such Work will be subject to the Upload Agreement and any restrictions that the Member have designated at the time of upload. The Upload Agreement is incorporated into these terms by reference. The Member must also enter appropriate keywords and a description of the Work so that the Work can be categorized and be searched by the Website's search engine. The fees a Member will earn depend on a variety of factors, including without limitation whether the work is available under exclusive or non-exclusive basis and the rights granted to other members of the Website, see the Standard pricing and payment policies, which may be updated from time to time. We may also place certain types of limits on the uploading of Works.
1.4 Download. Any Work downloaded by Members must be done through their own accounts, and such Work is subject to the Standard Download Agreement or the Extended Download Agreement, and also on criteria specified by the Member who uploaded the Work. The Download Agreement is incorporated into these terms by reference. A Member may download a Work for a particular use after paying with the applicable number of Credits (as defined below; or the applicable number of downloads in the case of a subscription) on the Website and agrees to the Download Agreement for such Work.
1.6 API. Your use of our application program interface (“API”) is subject to our API Agreement, incorporated into these terms by reference.
1.7 Affiliate Program. Your participation in our Affiliate Program is subject to our Affiliate Program Agreement, incorporated into these terms by reference.
2. General Acknowledgments Top
You may only use the Services if (a) you have the legal capacity to enter into this agreement with us and (b) your use does not violate applicable law.
3. Your Use of Works Top
3.1 Restrictions. You may only upload or download Works to or from the Website in accordance with these terms and the Upload Agreement or Download Agreement. You may not use, reproduce, distribute, display or create derivative works based on any Works that appear on the Website unless you enter into a Download Agreement, and you may do so only to the extent expressly permitted under the Download Agreement.
3.2 Ownership. No ownership of any Works is transferred and no sale of any Works is effectuated on or through the Website. Only the rights expressly licensed in the Download Agreement are granted on or through the Website. We and our licensors retain all title and ownership rights in and to the Works. Such Works are covered and protected by our or our licensors’ copyright, trademark and other intellectual property rights.
4. Your Use of the Website Top
4.1 General License to Your Content. In addition to the necessary licenses to the Work as stated in the Upload Agreement and Download Agreement, we require certain licenses from you to your content uploaded or posted on the Website. When you upload content (such as your comments on our blogs) to the Services, you grant us a non-exclusive, worldwide, royalty-free, sub-licensable, and transferrable license to use, reproduce, publicly display, distribute, modify (so as to better showcase your content, for example), publicly perform, and translate the content as needed in response to user driven actions (such as when you choose to store privately or share your content with others). This license is only for the purpose of operating and improving the Services.
4.2 Feedback. You have no obligation to provide us with ideas, suggestions, or proposals ("Feedback"). However, if you submit Feedback to us, then you grant us a non-exclusive, worldwide, royalty-free license that is sub-licensable and transferrable, to use, reproduce, publicly display, distribute, modify, and publicly perform the Feedback.
4.3 Responsibility. We have no obligation to review any Works or other content uploaded or posted onto the Website, and we have no responsibility for any such Works or other content. We have the right to accept or deny, delete, move or edit any Works or content uploaded or posted onto the Website. If you upload or post any Works or content onto the Website, or any Works or other content is uploaded or posted onto the Website using your account, then you remain solely responsible for such Works or other material or content.
4.4 Content on Other Websites. We have no responsibility for any content on other websites to which you may access from the Website, including any web log, comments to any web log, or any forum on the Website.
4.5 Modification. We may change, update, or discontinue any or all of the services on the Website at any time. We may remove or revise any materials on our Website for any reason at any time without notice to you, including without limitation due to concerns related to intellectual property rights, appropriate consents, or our contractual obligations or legal requirements. We have no obligation to make, or continue to make, the Website or any particular portion or related service available to you.
5. Restrictions Top
5.1 You must not misuse the Services or the Website. For example, you must not:
- Allow any other person access to your account;
- sell or transfer your account to another person or entity;
- use the Website in any manner that is not permitted by this Agreement or that violates any applicable law;
- upload or post onto the Website, or use the Website to transfer, any Work or other material that is covered or protected by copyright, trademark or other intellectual property rights unless you own or control such rights or have received all necessary consents;
- upload or post onto the Website, or use the Website to transfer, any Work or content that is libelous or slanderous or otherwise defamatory, obscene or indecent;
- upload or post onto the Website, or use the Website to transfer, any Work or content that contains or constitutes viruses, worms, Trojan horses or other code with malicious, disruptive or destructive features;
- attempt to gain unauthorized access to any hardware or software systems or networks associated with the Website, or obtain any services or information not intentionally made available to you on or through the Website;
- attempt to gain unauthorized access to the account of any other person or entity, or otherwise interfere with any other person's or entity's use, of the Website; or
- use any false or misleading information (e.g., false or misleading names, email addresses or URLs) when using the Website, including, without limitation, with respect to the origin or source of any Work or other material or content that you upload or any identifying information for your account.
5.2 You may not use the Website in a fraudulent manner, or otherwise in a manner for which the Website is not reasonably intended to be used. By way of example, you may not download works for the primary purpose of artificially inflating the ranking of a given contributor or for the primary purpose of artificially triggering payments to contributors. A contributor, or someone else on her behalf, may not download Works that such contributor has uploaded.
6. Subscription Top
6.1 Description. The Fotolia Subscription Program is a Service that allows you to access Works during the term of your subscription. Additional information is available at: https://www.fotolia.com/Info/Monthlypack and https://www.fotolia.com/Info/Dailysubscription.
6.2 Payment. If you purchase a subscription plan, then you authorize us to charge you the subscription fee listed at the time of purchase. We will automatically renew your subscription unless you cancel at least 3 days before your subscription renews. We may suspend or terminate your subscription if we are unable to charge the applicable fees to your account. The subscription fee may change at renewal of your subscription. Current subscription fees and other charges are available at https://www.fotolia.com/Info/Subscription/Monthly and https://www.fotolia.com/Info/Subscription/Daily. You are responsible for all charges incurred up to the time your account is deactivated or terminated. All fees are non-refundable, even if your subscription is terminated prior to its expiry date.
6.3 You may continue to use the Works after your subscription term ends, subject to terms of this Agreement.
6.4 You may not transfer your subscription or allow others to use your subscription, even if they are your affiliates, colleagues, contractors, or employees. However, you may purchase additional license for more users to use the subscription. If you should purchase such additional user license, then only the authorized users may use the subscription. Upon request, you must provide a list of authorized users. All Works downloaded by the authorized users may only be used solely on your behalf. You and each authorized user are jointly and severally liable to us for the compliance with this Agreement.
6.5 Unused Downloads. Unless you have purchased a monthly subscription, any unused downloads will automatically be forfeited at the end of your subscription term and will not carry over to the renewal term. For monthly subscriptions (where you are entitled to certain number of downloads over the course of a month or 30-day period), we may allow the unused downloads to carry over to renewal terms if you have renewed the subscription at the same value or higher without letting it lapsed.
6.6 Additional Downloads. We may offer the option of purchasing additional download capacity for specific number of months. If you purchase such additional downloads, then the additional downloads are added onto then-current download capacity remaining in your subscription, but only in respect of the month that the additional downloads are purchased. We may allow unused additional downloads to carry over during the subscription term. Purchase of additional downloads will not affect the number of downloads allotted under the then-current subscription for subsequent months or renewals.
6.7 California Subscribers. As required by California Code Section 1789.3, this notice is to advise Subscriber of the following: (a) The Service is a service provided by Fotolia LLC, 41 East 11th Street, 11th Floor, New York, NY 10003, USA. Fotolia’s telephone number is +1 (888) 674-2299. (b) For a description of all current fees and charges, see https://www.fotolia.com/Info/Subscription/Monthly and https://www.fotolia.com/Info/Subscription/Daily. Fotolia reserves the right to change the amount of any fee or charge and to institute new fees or charges, pursuant to the terms of this Agreement. (c) If Subscriber has a complaint regarding the Service or desire further information on use of the Service, contact Fotolia by telephone at +1 (888) 674-2299. For complaints, Subscriber may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 "R" Street, Sacramento, California 95814 or by telephone at 1-916-445-1254.
7. Credits Top
7.1 Credits. You may transact on the Website in Website credits (“Credits”) in accordance with our Standard pricing and payment policies and subject to any amounts that may be owed to us with respect to such transactions. You may not be able to purchase all products, subscriptions, or services with Credits. Subscriptions, for example, require separate payment. If you download a Work, we will deduct the requisite number of Credits from your account. If a Member downloads a Work that you have uploaded, we will deposit the appropriate number of Credits into your account after we have received from the downloading Member non-opposable proof of payment. Credits exist in two forms: “Standard Credits” and “Offered Credits”.
7.2 How to Get Credits. You may purchase Standard Credits through accepted methods of payment. You may also earn Standard Credits if your uploaded Works are downloaded by other Members. If you purchase any Standard Credits by using a credit or charge card or an online payment account, you warrant that you are the account holder or has the authority to use the credit card or account, and that the billing information provided is accurate, and you authorize us to charge the designated credit or charge card or online payment account for the total amount of the purchase, including any sales or similar taxes. We may require minimum purchase of Credits per transaction.
7.3 Limitations. Standard Credit purchases are non-refundable and will automatically expire and cease to have any value 365 days after the date of purchase. At our discretion, we may allow you to rollover any unused credits subject to a maximum cap of credits that can be rolled over. Only credits earned by selling Works or through the Affiliate Program may be redeemed. You may only redeem your Standard Credits in the currency you indicated at the time you registered with the Website. We may grant you Offered Credits from time to time. Credit value is subject to change. Notwithstanding anything to the contrary in these terms, you may never redeem Offered Credits for cash, and may only use Offered Credits for transactions on the Website. Credits do not have monetary exchange value outside of our Website and may not be resold or traded. All credits will automatically expire and cease to have any value upon termination or expiration of this Agreement.
8. Account and Payment Top
8.1 You must keep confidential your account information. Your account information personal to you and may not be shared with, or transferred to, any other person or entity.
8.2 You will be solely responsible for each and every use of your account. We may rely on the use of your account as conclusive evidence that you have used the Website.
8.3 Your services (Credits or Subscription) are subject to the payment of a fee to Fotolia LLC, provided however that you may need to pay some or all of the fee to our subsidiary, Fotolia Netherlands Cooperatief U.A., depending on where you reside or on other similar parameters.
9. Representations and Warranties Top
By using our Website, you agree that you have: (a) all necessary licenses and permissions, to upload and share your Work and (b) the rights necessary to grant the licenses in these terms.
10. Indemnification Top
10.1 You will indemnify us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising out of or related to your Works or other content that you provide to us, your use of the Services or Website, or your violation of these terms.
10.2 We have the right to control the defense of any claim, action or matter subject to indemnification by you with counsel of our own choosing. You will fully cooperate with us in the defense of any such claim, action or matter. You may not settle
11. Disclaimer of Warranties Top
11.1 The Services, Works, and Website are provided “AS-IS.” To the maximum extent permitted by law, we disclaim all warranties express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. We make no commitments about the Works or content within the Services. We further disclaim any warranty that (a) the Services or Works will meet your requirements or will be constantly available, uninterrupted, timely, secure, or error-free; (b) the results that may be obtained from the use of the Services will be effective, accurate, or reliable; (c) the quality of the Services or Works will meet your expectations; or that (d) any errors or defects in the Services will be corrected.
11.2 We specifically disclaim any liability for any actions resulting from your use of any Services or Works. You may use and access the Services or Works at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the use and access of any Service or Works.
12. Limitation of Liability Top
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. Except stated in the Download Agreement or Upload Agreement, the total liability in any matter arising out of or related to these terms is limited to US $100. The limitations and exclusions in this section apply to the maximum extent permitted by law.
13. Termination and Suspension Top
13.1 We may terminate these terms or your account upon notice to you at our discretion, including, without limitation, for your breach of these terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with these terms), if it has become impractical for us to offer the Services in your region, or for inactivity by you with respect to use of the Website. You may at any time terminate these terms or your account by sending a termination request to us through your account page on the Website.
13.2 We will terminate a user’s access to the Website if we have determined the user to be a repeat infringer.
13.3 We may suspend your account at any time and for any length of time. During the time your account is suspended, you will not be able to upload any Works on the Website, but you may continue to access your account.
14. Effect of Termination Top
14.1 Upon any termination of these terms:
- your account will be canceled and closed;
- all Works uploaded by you will be removed from the Website; provided, however, that we may continue to use the Work for internal archival and reference purposes and all other Members who have downloaded your Work may continue to use your Work under the terms of their license;
- You may continue to use the Work that you have downloaded and paid for;
- you will forfeit all rights, title and interest in and to any and all Credits; and
- We may prevent you from signing up to use or access the Services or the Website.
14.2 Termination of this Agreement does not relieve you of any obligations to pay any outstanding fees, or other obligations under any other agreement that has not been specifically terminated, such as an Upload Agreement or Download Agreement. The provisions of Sections 8, 9, 10, 11, 12, 14 and 16 will survive the termination of these terms.
15. Standards Top
15.1 We strive to educate our members about achieving and maintaining high standards in the use of photographic images through good judgment and the application of relevant, recognized principles and standards. Below is an outline of our expectations of our members regarding human rights, with a specific focus on children’s rights, in its business practices.
15.2 Photographers who provide us with images have the responsibility to ensure that the highest standards are met. Accordingly, we require that a properly executed model release consent be obtained by the photographer for all persons appearing in any uploaded Works, and signed by a parent or guardian of any underage model appearing in a Work, before submitting such Work to us.
15.3 We have a zero-tolerance policy related to inappropriate images of children. In its role as a marketplace for the uploading and downloading of images, if we become aware of any such inappropriate images of children, we may take one or more of the of the following actions (in addition to any other actions it may deem appropriate):
- Alert the appropriate law enforcement authorities
- Remove the images of concern from all our libraries and servers
- Suspend or delete the account of the providers and users of such photos
16. Miscellaneous Top
16.1 Governing Law. Your relationship is with Fotolia LLC, a United States company, and 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.
16.2 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 Fotolia must resolve any claims relating to these terms, the Services, or the Software 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.
16.3 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.
16.4 No Agency. The relationship between you and us under these terms is that of independent contractors. For clarification purposes, the parties are not joint venturers, partners, principal and agent, or employer and employee. Neither party has the power to bind or obligate the other in any manner.
16.5 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 your use of the Website. If you have purchased a subscription from us, then at the beginning of each billing period, we will charge you the fee stated at the time of purchase plus applicable tax (such as, value added tax (unless the fees are stated inclusive of VAT), sales tax, use tax, or other tax or duty). If the applicable VAT rate, or other included tax or duty, changes during the one-year term, the tax-inclusive price will change accordingly. In that case, the service begins when we confirm your payment. Specific subscription terms for a particular Service are presented at the time of your purchase.
16.6 No Waiver. Our failure to enforce or exercise any of these terms is not a waiver of that section.
16.7 Assignment. We have the right, in our sole discretion, to assign any or all of its rights or obligations under these terms. You have no right to assign any of your rights or obligations under these terms and any such attempt will be void.
16.8 Severability. If a particular term is not enforceable, the unenforceability of that term will not affect any other terms.
16.9 Modification. We may modify these terms or any additional terms that apply to these Services 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 Services after the revisions come into effect, you agree to be bound by the revised terms.
16.10 English Version. The English version of these terms will be the version used when interpreting or construing these terms.
17. DMCA Top
If you are a copyright owner or an agent thereof and believe that any user Work or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit Fotolia to locate the material;
- Information reasonably sufficient to permit Fotolia to contact you, such as an address, telephone number, and, if available, an electronic mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Fotolia’s designated Copyright Agent to receive notifications of claimed infringement is: Copyright Agent, Fotolia LLC, 41 East 11th Street, 11th Floor, New York, NY 10003; email: firstname.lastname@example.org; facsimile: 212-658-9082. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to +1 (888) 674-2299. You acknowledge that if you fail to comply with all of the requirements of this Section 5, your DMCA notice may not be valid.