Commercial Terms & Licensing Agreement - Custom

COMMERCIAL LICENSE FOR THURSTON PHOTO - INDIVIDUAL IMAGE

(Last updated: September 15th 2019)

This Agreement governs the terms by which clients of Thurston Photo obtain the right to use Thurston Photo imagery obtained through the web site located at www.ThurstonPhoto.com (the “Site”). This Content License Agreement is in addition to the Terms of Use applicable to the Site and to all persons downloading content from the Site. In the event of any inconsistency between this Agreement and the Terms of Use (both of which are incorporated into this Agreement by reference), the terms of this Agreement shall govern.

1. Background of Agreement

(a) By downloading content from this site, you accept this Agreement, and agree to be bound by its provisions. If you do not accept or agree with these terms, do not download the Content.

(b) In this Agreement: (i) “you” or the “Client” means you ( the person/company downloading the content, (ii) “Thurston Photo” or “we” means Thurston Photo, operator of the Site and copyright owner of the content; and (iii) “Content” means any photographic image or other material that you are downloading from the Site for an intended use.

2. Downloading Terms - Obtaining the content

We hereby grant to you perpetual, non-exclusive, non-transferable, worldwide permission to use the Content for the Permitted Uses only (as defined below). Unless the activity or use is a Permitted Use, you cannot do it. All rights in and to the Content, including, without limitation, all copyright and other intellectual property rights relating to the Content, are retained by Thurston Photo.

3. Commercial License Permitted Uses

(a) Reproduction / Print Run Limits

Notwithstanding the restrictions contained in section 4(a) of the Commercial License Prohibitions, you shall be entitled with respect to each individual image requested for license, up to 15,000 reproductions per image, and this Agreement is deemed amended in that respect. All other terms and conditions of the Agreement remain in full force and effect, including all Prohibited Uses.

Items for Resale - Limited Run

Notwithstanding the restriction contained in section 4(a) of the Commercial License Prohibitions prohibiting the use or display of the Content in items for resale, you shall be entitled with respect to this specific Content to produce the following items for resale, license, or other distribution:

  • up to 15000 t-shirts, sweatshirts, or other apparel. 
  • up to 15,000 swing tags or tags related/attached to corresponding apparel. 

In or on which the Content is used or displayed (the "Resale Merchandise"), provided that:

  • the right to produce the Resale Merchandise in no way grants any right to you or any recipient of the Resale Merchandise in any intellectual property or other rights to the Content;
  • you agree to indemnify the Thurston Photo Parties from any cost, liability, damages or expense incurred by any of them relating to or in connection with any of the Resale Merchandise;
  • any production of Resale Merchandise in excess of the allowed run size is prohibited and requires the Content to be purchased separately;
  • use or display the Content on websites or other venues designed to induce or involving the sale, license or other distribution of “on demand” products, including postcards, mugs, t-shirts, posters and other items (this includes custom designed websites);
  • all other terms and conditions of the Agreement remain in full force and effect, including all Prohibited Uses;

(b) Any additional permitted uses must be approved in writing by Thurston Photo.

If there is any doubt that a proposed use is a Permitted Use, you should contact Thurston Photo for guidance.

4. Commercial License Prohibitions

(a) Prohibited Uses. You may not do anything with the Content that is not expressly permitted in the preceding section. For greater certainty, the following are “Prohibited Uses” and you may not:

  • Use the content in design template applications intended for resale, whether online or not, including, without limitation, website templates, business card templates, electronic greeting card templates, and brochure design templates;
  • Advertising and promotional projects, including product packaging, presentations, film and video presentations, broadcast and theatrical presentations, commercials, catalogues, brochures, promotional greeting cards and promotional postcards, or other cards, mugs or mousepads, games, toys, entertainment goods, stationery, stickers, or paper products; (ie. not for resale or license);
  • use the Content in entertainment applications, such as books and book covers, magazines, newspapers, editorials and newsletters that are intended for resale;
  • use the Content in any posters, framed or mounted artwork, fine art prints, (printed on paper, canvas or any other media), calendars or other similar publications;
  • use the Content online or in any electronic publications;
  • use any of the Content as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo;
  • incorporate the Content in any product that results in a re-distribution or re-use of the Content (such as electronic greeting card web sites, web templates and the like) or is otherwise made available in a manner such that a person can extract or access or reproduce the Content as an electronic file;
  • use the Content in a fashion that is considered by Thurston Photo (acting reasonably) as or under applicable law is considered obscene, immoral, infringing, defamatory or libellous in nature, or that would be reasonably likely to bring any person or property reflected in the Content into disrepute;
  • remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Content;
  • sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Content or the rights granted under this Agreement;
  • install and use the Content in more than one location at a time or post a copy of the Content on a network server or web server for use by other users;
  • use or display the Content in an electronic format that enables it to be downloaded or distributed via mobile devices or shared in any peer-to-peer or similar file sharing arrangement;
  • use Content identified as “Editorial Use Only”, for any commercial, promotional, endorsement, advertising or merchandising use. For clarification, in this Agreement “Editorial Use Only” of Content means use relating to events that are newsworthy or of general interest and expressly excludes any advertorial sections (i.e. sections or supplements featuring brand and/or product names or sections or supplements in relation to which you receive a fee from a third-party advertiser or sponsor);
  • either individually or in combination with others, reproduce the Content, or an element of the Content, in which event you shall be required to pay a royalty fee of Thurston Photos reasonable discretion for each and every reproduction. 
  • If the Content is reproduced on a social media platform or other third party website, (i) the rights granted herein shall automatically be revoked in the event that the platform website seeks to exploit purported rights to the Content contrary to the terms of this Agreement, and (ii) in such an event, upon Thurston Photo’s request, you shall remove any Content from such platform or website.

6. Terms of Agreement

(a) This Agreement is effective immediately upon downloading the content from the site, and will remain effective for a period of (12) months from the date of download/agreement, OR until it is terminated by Thurston Photo. You can terminate this Agreement by destroying the Content, along with any copies or archives of it or accompanying materials (if applicable), and ceasing to use the Content for any purpose. The Agreement also terminates without notice from Thurston Photo if at any time you fail to comply with any of its terms. Upon termination, you must immediately (i) cease using the Content and for any purpose; (ii) destroy or delete all remaining copies and archives of the Content or accompanying materials; and (iii) if requested, confirm to Thurston Photo in writing that you have complied with these requirements.

(b) Thurston Photo reserves the right to elect at a later date to revoke or amend the license granted by this Agreement and replace the Content with an alternative for any reason. Upon notice, sent to the address or contact information provided by you, or such other address as you may advise us in writing to use, from time to time, of such replacement, the license for the replaced Content immediately terminates for any products that do not already exist, and this license automatically applies to the replacement Content. You agree not to use the replaced Content for future products and to take all reasonable steps to discontinue use of the replaced Content in products that already exist.

(c) Upon notice from Thurston Photo, or upon your knowledge that any Content is subject to a threatened, potential or actual claim of infringement of another's right for which Thurston Photo may be liable, you must immediately and at your own expense (i) stop using the Content; (ii) delete or remove the Content from your computer systems and storage (electronic or physical). Thurston Photo shall provide you with replacement Content (which shall be decided upon by both parties in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.

7. Thurston Photo Representations and Warranties

(a) While we have made reasonable efforts to correctly categorise, keyword, caption and title the Content, Thurston Photo does not warrant the accuracy of such information. Additionally, Thurston Photo does not warrant the accuracy of any metadata that may be provided with the Content.

(b) THE CONTENT IS PROVIDED “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. THURSTON PHOTO DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE, YOU (AND NOT THURSTON PHOTO) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.

8. General Provisions

(a) You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the Terms of Use and 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.

(b) Thurston Photo’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.

(c) This Agreement is personal to you and is not assignable by you without Thurston Photo’s prior written consent.

(d) The parties have agreed that this Agreement and all related documents be drawn up in English.

9. Contact

If you have concerns relating to this Agreement, please contact Thurston Photo at pt@thurstonphoto.com or via phone at +61423260803.

10. Acknowledgement

BY DOWNLOADING CONTENT FROM THIS SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND IT. IN CONSIDERATION OF THURSTON PHOTO AGREEING TO PROVIDE THE 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 THURSTON PHOTO, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND THURSTON PHOTO RELATING TO THE SUBJECT OF THIS AGREEMENT.

© Thurston Photo 2019. All rights reserved.

 

 

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