February 26, 2014
TERMS OF SERVICE (“TOS”)
SINGLE USER ENHANCED LICENSE
Dear Pixoto Enhanced License Customer:
Pixoto reserves the right to change these TOS at any time, and you agree to be bound by such changes. If and when changes are made to these TOS an announcement will appear on your login page. Please make sure that you read and understand all such changes. If you do not agree to these TOS, as same may be amended from time to time, do not download or use any Images. Your failure to comply with the terms hereof could result in the immediate termination of your account. The TOS in effect at the time you are billed will control your rights and obligations with regard to Images downloaded during each such billing cycle. If you selected a product with the “Auto Renewal Option”, the effective date of each renewal will determine which TOS controls your use of Images. If the Auto Renewal Option is selected for your product, the product will automatically renew and you will be charged as specified in the description of your product when you make your initial purchase unless you disable Auto Renewal before your next renewal occurs.
To use an Image(s) as permitted by these TOS, you must download that Image(s) using your Enhanced License account. Images downloaded as part of a Standard License plan may only be used in compliance with the Standard License TOS regardless of any other products you may have purchased.
THIS IS A SINGLE SEAT LICENSE. IT AUTHORIZES ONE NATURAL PERSON TO LICENSE, DOWNLOAD AND USE IMAGES. Your Pixoto username and password are to be used only by you. Each person that desires to access the Pixoto Websites must have his/her own username and password. We reserve the right to monitor accounts and institute means to stop users from sharing their login information. Customized products for multiple users are available from Pixoto. Please contact Pixoto Support for details.
All Images on Pixoto.com and related Pixoto webpages (collectively, “Pixoto Websites”) are protected by United States and international copyright laws and treaties. Pixoto and/or the various artists who provide content and/or Images to Pixoto (“Contributors”) own all rights, including the copyrights in and to the Images. Pixoto and/or its Contributors reserve all rights in and to the Images not expressly granted to you by these TOS. Your rights to use any Image are subject to these TOS and are conditioned upon you making payment to Pixoto for your use of the Images. If you fail to make any payment to Pixoto when due, or if any check is dishonored or credit card charge refused or charged back, your account will be deemed delinquent. Provided that your account was current at the time you downloaded an Image and you were not otherwise in breach of any of the terms hereof (or of the terms of any other agreement between you and Pixoto), you have the right to use the downloaded Image, subject however, to these TOS. If your account becomes delinquent, your right to use any Images downloaded at any time shall automatically terminate unless all payments together with any interest thereon and Pixoto’s costs of collection, bank charges and credit card processing fees are received by Pixoto no later than fifteen (15) days from the date that your account became delinquent.
Pixoto hereby grants you a non-exclusive, non-transferable, worldwide, perpetual, right to use, modify, and reproduce Images in the following ways, subject to the limitations set forth herein and in Part II hereof:
On web sites;
In printed media, digital media, product packaging and software including magazines, newspapers, books (including print-on-demand books), e-books, advertising collateral, letterhead, business cards, product labels, CD and DVD cover art, applications (including mobile “apps”), and opt-in e-mail marketing, provided that the Image(s) cannot be readily unincorporated from such digital media;
Incorporated into film, video, multimedia presentations, or advertising for broadcast, public performance, streaming;
Incorporated into printed or digital material intended for public display, including trade show booths, point of sale materials, and so-called Out of Home advertising;
As printed reproductions solely for your own personal use, not for resale, download or distribution, including as wall art and wallpaper;
Incorporated into merchandise for resale or distribution, without regard to the size of the manufacturing or duplication run of such merchandise (including downloads), including, without limitation, computers, computer peripherals, clothing, artwork, magnets, posters, and online and paper greeting cards, provided that such merchandise: a) combines words and an Image or Images; or b) the Image is not the primary factor driving the sale of such merchandise.
In the event that you create a derivative work based on or incorporating one or more Images, all rights in and to such Images shall continue to be owned by Pixoto or its Contributor(s), subject to your rights to use such Image(s) pursuant to the terms and limitations set forth herein.
All rights in the Images not expressly granted herein are reserved by Pixoto for itself and its Contributors.
YOU MAY NOT:
Use an Image other than as specified in PART I.
Use an image in a manner permitted under these Enhanced License TOS if you did not download the Image using your Enhanced License account.
Make Images available to a third party on a digital asset management system, shared drive or the like for the purposes of sharing or transferring such Image(s).
Resell, redistribute, provide access to, share or transfer any Image except as specifically provided herein. Uploading any Image to a web site at a resolution that exceeds the display resolution of the intended viewing device will be deemed to be an attempt to redistribute the Image.
Publicly display an Image: (a) as a standalone file in any digital format on the internet; or (b) in any digital format without imposing technical or written restrictions intended to prevent the use of such Images by third parties, unless the Image is incorporated into a design with text or other content, and the overlaid or embedded text or other such content covers an area of at least 33% of the display size of the Image. Unless expressly permitted by this agreement, no other person may use Images which you have licensed hereunder.
Use or display any Image on websites or in connection with any service designed to sell or induce sales of user-customized “print on demand” products of any kind using or incorporating Image(s), including, by way of example only, postcards, mugs, t-shirts, posters, giclee prints, wallpaper, artwork and other items.
Use an Image together with pornographic, defamatory, or otherwise unlawful or immoral content.
Use an Image in such a manner that it infringes upon any third party’s trademark or other intellectual property rights, or would give rise to a claim of deceptive advertising or unfair competition.
Use an Image in a way that places any person depicted therein in a way that a reasonable person might find offensive – this includes, but is not limited to, the use of Images: a) in pornography, “adult videos” or the like; b) in ads for tobacco products; c) in ads or promotional materials for adult entertainment clubs or similar venues, or for escort, dating or similar services; d) in connection with political endorsements; e) in advertisements or promotional materials for pharmaceutical or healthcare, herbal or medical products or services, including, but not limited to dietary supplements, digestive aids, herbal supplements, personal hygiene or birth control products; and f) uses that are defamatory, or contain otherwise unlawful, offensive or immoral content. You may not use an Image containing the likeness of a person if such use implies that the model engages in any immoral or illegal activity or suffers from a physical or mental infirmity, ailment or condition. Pixoto offers licenses that allow for certain “sensitive” uses prohibited by this Enhanced License. Please contact Pixoto Support for more information.
Use any Image on a social media platform or other third party website that claims to acquire rights in the Image contrary to these TOS as a result of such use. Upon Pixoto’s request, you shall immediately remove any Images from such platform or website. If you require such use, please contact Pixoto Support.
Use Pixoto Images in a manner that competes with Pixoto’s business. This includes, by way of illustration only and not by way of limitation, displaying Images in any format (including thumbnails) for download on a website, and/or offering Pixoto Images for sale or resale.
Withhold a credit attribution or fail to provide a copyright notice required by paragraph 34 of these TOS, except with an advance written waiver of that requirement from Pixoto in each instance. Each waiver issued by Pixoto will specify the Image number or numbers and the usage and is applicable only to the specified Image(s) and usage(s). Do not assume that you have or will receive a waiver for a proposed future use because you received a waiver in the past for a similar use.
Use an Image marked “Editorial Use Only” for commercial purposes.
Use any Image (in whole or in part) as a trademark, service mark, logo, or other indication of origin, or as part thereof, or to otherwise endorse or imply the endorsement of any goods and/or services.
Falsely represent, expressly or by way of reasonable implication, that any Image was created by you or a person other than the copyright holder(s) of that Image
Stockpile or otherwise store downloaded Images that are not used within twelve (12) months of the date on which you first downloaded such Image. If you fail to use an Image within twelve (12) months from the date of your first download of that Image, you lose all rights to use that Image.
Use automated programs, applets, bots or the like to access the Pixoto.com website or any content thereon for any purpose, including, by way of example only, downloading Images, indexing or caching the content of the website.
Pixoto shall be under no obligation to issue refunds under any circumstances. However, in the event that Pixoto determines that you are entitled to a refund of all or part of the fees you paid, such refund shall only be made to the credit card account originally used by you to purchase your product. If your product was paid for by check, your refund will be made by check.
“Non-transferable” as used herein means that except as specifically provided in these TOS, you may not sell, rent, load, give, sublicense, or otherwise transfer to anyone, an Image or the right to use an Image. You may however, make a one-time transfer of Images to a third party for the sole purpose of causing such third party to print and/or manufacture your goods incorporating Images subject to the terms and conditions herein. In addition, the work you produce with the Image must be used for yourself, your direct employer, client, or customer, who must be the end user of your work. You agree to take all commercially reasonable steps to prevent third parties from duplicating any Image. If you become aware of any unauthorized duplication of any Pixoto Image(s) please notify us via email at info@Pixoto.com.
If you plan on using or do use Images as part of work for a client or customer, you must keep accurate and detailed records of the use of each Image. These records must include the name of the client or customer, the Pixoto Image number as well as the date or dates on which the Images were used. You shall deliver copies of such records to Pixoto at Pixoto’s request.
You agree to indemnify and hold Pixoto, its officers, employees, shareholders, directors, managers, members and suppliers harmless against any damages or liability of any kind arising from any use of the Image other than the uses expressly permitted by these TOS. You further agree to indemnify Pixoto for all costs and expenses that Pixoto incurs in the event that you breach any of the terms of this or any other agreement with Pixoto.
Warranties and Representations
Pixoto warrants and represents that:
Unaltered Images downloaded and used in full compliance with these TOS and applicable law, will not infringe any copyright, trademark or other intellectual property right, nor will such unaltered Images violate any third parties’ rights of privacy or publicity;
Unaltered Images do not and will not violate any US law, statute, ordinance, or regulation;
Unaltered Images are not and will not be defamatory, libelous, pornographic, or obscene.
While Pixoto makes commercially reasonable efforts to ensure the accuracy of Image keywords and descriptions, as well as the integrity of our Editorial Images, Pixoto makes no warranties and/or representations regarding such keywords, Image descriptions or Images designated “Editorial Use Only”.
PIXOTO MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER OTHER THAN THOSE EXPRESSLY MADE IN THIS PARAGRAPH.
Subject to the terms hereof, and provided that you have not breached the terms of this or any other agreement with Pixoto, Pixoto shall defend, indemnify, and hold you harmless up to the “Limits of Liability” (as hereinafter defined). Such indemnification shall only apply to claims for damages directly attributable to Pixoto’s breach of the foregoing warranties and representations, together with the expenses (including reasonable attorneys’ fees), arising out of or directly connected to any actual or threatened lawsuit, claim, or legal proceeding alleging that the possession, distribution, or use of Images downloaded and used by you pursuant to these TOS violate Pixoto’s warranties contained herein. This indemnification is conditioned upon you notifying Pixoto, in writing, of any such claim or threatened claim, no later than five (5) business days from the date you know or reasonably should have known of the claim or threatened claim. Such notification must include all details of the claim then known to you (e.g., Pixoto Image Number, a copy of the Image as used, name and contact information of person and/or entity making the claim, nature and date of alleged claim, copies of any correspondence received and/or sent in connection with the claim). The notification must be emailed or faxed to Pixoto at email@example.com with a hard copy to Pixoto, Inc., 437 18th St, Boulder, CO, 80302, Attention: General Counsel, via Certified Mail, Return Receipt Requested, or overnight courier, recipient’s signature required. Pixoto shall have the right to assume the handling, settlement or defense of any claim or litigation to which this indemnification applies. You agree to cooperate with Pixoto in the defense of any such claim and shall have the right to participate in any litigation at your own expense. Pixoto shall not be liable for any legal fees and/or other costs incurred prior to receiving complete notification of the claim as provided herein.
Notwithstanding any thing to the contrary contained herein, Pixoto shall not be liable for any damages, costs or losses arising as a result of modifications made to Images or the context in which the Images are used by you.
Pixoto’s total maximum aggregate obligation and liability to any one Customer for all claims shall be limited to Ten Thousand United States Dollars – US$10,000.00 – (the “Limits of Liability”).
Any legal action or proceeding concerning the validity, interpretation and enforcement of these TOS, matters arising out of or related to these TOS or its making, performance or breach, or related matters shall be brought exclusively in the courts of the State of New York in the County of New York, or of the United States of America for the Southern District of New York, and all parties consent to the exclusive jurisdiction of those courts, waiving any objection to the propriety or convenience of such venues. The United Nations Convention on Contracts for the International Sale of Goods does not apply to or otherwise affect these TOS. The validity, interpretation and enforcement of these TOS, matters arising out of or related to these TOS or their making, performance or breach, and related matters shall be governed by the internal laws of the State of New York (without reference to choice of law doctrine). You agree that service of process in any actions, controversies and disputes arising from or relating to these TOS may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the other party however, nothing herein shall affect the right to effect service of process in any other manner permitted by law.
These TOS shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning of the language hereof. The invalidity or unenforceability of any part of these TOS shall not affect the validity or enforceability of the balance hereof.
If you are entering into these TOS on behalf of your employer or other entity, you warrant and represent that you have the full right and authority to do so. In the event that you do not have such authority, you agree that you will be personally liable to Pixoto for any breaches of the terms of these TOS.
The number of Image downloads available to you is determined by the product you purchase. For the purposes of this agreement, a day is defined as the twenty four (24) hour period beginning at the time your product is purchased. A month is defined as thirty (30) consecutive days beginning on and including the date that you purchase your product.
Credit Attributions and Copyright Notices
Though Pixoto requires the following credit attributions and copyright notices, Pixoto may waive such requirements on a case by case basis. If you have any questions regarding credit attributions and copyright notices or to request that Pixoto grant you a waiver of such requirements, please contact Pixoto Customer Support. No waiver of such requirements shall be effective unless confirmed in an email or other writing from Pixoto to you.
You shall accord credit and provide a copyright attribution to the copyright holder and to Pixoto in connection with the use of any Image in a book, magazine, e-zine or newspaper. Such credit and attribution shall be in substantially the following form: “Image Copyright Name of Artist, Used under license from Pixoto.com”.
Notwithstanding the foregoing, in the event that the Image is used in connection with merchandise, or a film, television broadcast, documentary or other video or multimedia project or presentation, you shall use reasonable commercial efforts to accord the copyright holder and Pixoto a credit as provided above. However, if no other copyright holders are accorded credit, only Pixoto shall be accorded a credit in substantially the following form: “Image(s) used under license from Pixoto.com”.
Notwithstanding the foregoing, unless any other provider of stock media is credited, credit attributions are not required in connection with the use of Images in advertising or incorporated into merchandise.
All credits shall appear on the copyright page or in the copyright section of the work into which the Image is incorporated. If there is no copyright page or section, the notice and credit may be located anyplace on the work. In all cases the credit and attribution shall be of such size, color and prominence so as to be clearly and easily readable by the unaided eye.
IN THE EVENT THAT YOU BREACH ANY OF THE TERMS OF THIS OR ANY OTHER AGREEMENT WITH PIXOTO, PIXOTO SHALL HAVE THE RIGHT TO TERMINATE YOUR ACCOUNT WITHOUT FURTHER NOTICE. SUCH TERMINATION SHALL BE IN ADDITION TO PIXOTO’S OTHER RIGHTS AT LAW AND/OR EQUITY. PIXOTO SHALL BE UNDER NO OBLIGATION TO REFUND ANY FEES PAID BY YOU IN THE EVENT THAT YOUR ACCOUNT IS TERMINATED BY REASON OF ANY SUCH BREACH OR BREACHES.
PIXOTO MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER OTHER THAN THOSE EXPRESSLY MADE IN PARAGRAPH 26 HEREOF, AS TO THE LEGALITY OR VALIDITY OF ANY RELEASE ASSOCIATED WITH AN IMAGE. EXCEPT AS PROVIDED ABOVE, THE IMAGE(S), STORAGE MEDIA AND ACCOMPANYING MATERIALS (IF APPLICABLE) ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
PIXOTO GRANTS NO RIGHTS AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE USE OF ANY NAMES, TRADEMARKS, LOGOTYPES, COPYRIGHTED DESIGNS OR WORKS OF ART OR ARCHITECTURE DEPICTED IN ANY IMAGE. IT IS YOUR RESPONSIBILITY TO ASSURE THAT ALL NECESSARY RIGHTS, CONSENTS, OR PERMISSIONS THAT MAY BE REQUIRED FOR YOUR USE OF ANY IMAGES ARE OBTAINED.
PIXOTO DOES NOT WARRANT THAT THE IMAGE(S), PIXOTO WEBSITES, OR OTHER MATERIALS, WILL MEET YOUR REQUIREMENTS OR THAT USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE AND USE OF THE IMAGE(S) IS SOLELY WITH YOU.
YOU UNDERSTAND THAT YOU SHOULD SEEK COMPETENT COUNSEL BEFORE USING IMAGES ON OR IN CONNECTION WITH ANY GOODS OR SERVICES OR FOR ANY OTHER COMMERCIAL PURPOSES.
EXCEPT AS SPECIFICALLY PROVIDED IN PARAGRAPH 29 HEREOF, IN NO EVENT, SHALL PIXOTO’S TOTAL AGGREGATE LIABILITY TO YOU, OR TO ANY THIRD PARTY CLAIMING THROUGH YOU, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE PIXOTO WEBSITE AND/OR IMAGE(S) CONTAINED THEREON (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE MONETARY AMOUNT ACTUALLY RECEIVED BY PIXOTO FROM YOU FOR YOUR USE OF THE APPLICABLE IMAGE(S).
NEITHER PIXOTO NOR ANY OF ITS OFFICERS, EMPLOYEES MANAGERS, MEMBERS, SHAREHOLDERS, DIRECTORS OR SUPPLIERS SHALL BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF YOUR USE OF THE IMAGE(S), PIXOTO’S BREACH OF THIS AGREEMENT, OR OTHERWISE, UNLESS EXPRESSLY PROVIDED FOR HEREIN, EVEN IF PIXOTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. IN NO EVENT, SHALL PIXOTO’S TOTAL AGGREGATE LIABILITY TO YOU, OR TO ANY THIRD PARTY CLAIMING THROUGH YOU, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE PIXOTO WEBSITE AND/OR IMAGE(S) CONTAINED THEREON (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE LIMITS OF LIABILITY.
IN THE EVENT THAT YOU USE FRAUDULENT CREDIT CARD INFORMATION TO OPEN AN ACCOUNT OR OTHERWISE ENGAGE IN ANY CRIMINAL ACTIVITY AFFECTING PIXOTO, PIXOTO WILL PROMPTLY FILE A COMPLAINT WITH www.ic3.gov, THE INTERNET CRIME COMPLAINT CENTER, A PARTNERSHIP BETWEEN THE FEDERAL BUREAU OF INVESTIGATION (FBI) AND THE NATIONAL WHITE COLLAR CRIME CENTER.
Effective 16 September, 2013