Section 1. Definitions
Unless otherwise defined herein, capitalized terms shall have the meanings given to such terms in the Fotolia Terms and Conditions.
“Affiliate ID” means the unique identifier given by Fotolia to each Member qualified to participate in the Fotolia Affiliation Program.
“API” means Application Programming Interface.
“End User” means a user of a Fotolia API Client.
“Fotolia” means Fotolia, LLC and any of its affiliates or subsidiaries.
“Fotolia Affiliation Program” means the Affiliation Program described at http://en.fotolia.com/Info/Agreements/Affiliation, as amended from time to time.
“Fotolia API Client” means any software, such as a website or application, that uses the Fotolia API in any manner, either directly or indirectly.
“Fotolia API Specifications” means all information and documentation that Fotolia provides concerning the Fotolia API.
“Fotolia Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of Fotolia.
“Fotolia Image Bank” means Fotolia’s database containing all of the Works that have been uploaded to Fotolia.
“Fotolia Price” means the current price charged by Fotolia on the Fotolia Website for a Work.
“Fotolia Website” means any and all websites owned and controlled by Fotolia with the “fotolia” domain name.
“Third Party Author” means a Member that has uploaded Work(s) to the Fotolia Image Bank and who owns the uploaded Work(s), including all intellectual property rights in such Work.
Section 2. Description of the Fotolia API2.1 The Fotolia API
The Fotolia API allows a Fotolia API Client to query the Fotolia Image Bank and display the results of such query. The Fotolia API consists of three different subsets of APIs: the Partner API, the Business API, and the Developer API.2.2 The Partner API
The Partner API may be used by any Member that is qualified to participate in the Fotolia Affiliation Program, to send a search query to the Fotolia Image Bank and to display the results of such query, including the details about any retrieved Works, on its Fotolia API Client. End Users are redirected to the Fotolia Website for purchases.2.3 The Business API
The Business API allows a Member to sell Works as part of an end product that constitutes a derivative work, as defined under United States copyright law, of the Works (the “End Product”). The End Product may be in either a tangible or digital medium, but in all cases Works may only be used in the End Products in a manner that is consistent with the terms of the applicable Download Agreement. The Fotolia Price of each Work incorporated in an End Product that is purchased or downloaded by an End User will be deducted from the Credits in the Member’s Membership Account.2.4 The Developer API
The Developer API allows a Developer to create non-commercial Fotolia API Clients, such as widgets, plugins, addons, extensions, web services, or other APIs, that allow End Users to: (a) query the Fotolia Image Bank for details about Works; (b) upload Works to the Fotolia Image Bank; (c) query Fotolia to get information about a user, if the End User is a Member. No works may be displayed on the Fotolia API Client using the Developer API.2.5 Obtaining the Fotolia API
(a) To obtain one of the three Fotolia APIs, You must: (i) be a Member; (ii) request an API key in your member area. Your request must describe the purposes for which You intend to use the Fotolia API and which key you need. If Fotolia grants Your request for access to one of the Fotolia APIs, a key (the “API Key”) that enables to access one of the Fotolia APIs will be granted.
(b) Fotolia reserves the right, in its sole discretion, to reject any request to use the Fotolia API for any reason. Fotolia shall not be liable for damages of any sort resulting from its decision to reject such a request.
Section 3. Licensed Uses and Restrictions3.1 Fotolia API License.
The Fotolia API and the Fotolia API Specifications (the “Licensed Materials”) are owned by Fotolia and are licensed to You, on a worldwide, non-exclusive, non-sublicensable, non-transferable and revocable basis, on the terms and conditions set forth herein. These terms define the permissible use of the Licensed Materials, and of all updates, revisions, substitutions, and any copies of the Licensed Materials made by You or for You. All rights not expressly granted to You herein are reserved by Fotolia.3.2 General License Terms.
All users of the Fotolia API agree to the following:
(a) You shall have a valid and active Membership Account that has not been terminated or suspended by Fotolia pursuant to the Fotolia Terms and Conditions.
(c) You acknowledge that the Works are the property of Fotolia or the Third Party Authors and are protected by intellectual property laws, including laws related to copyrights, trademark and other similar rights. You shall use Your best efforts to protect the Works to ensure that they cannot be copied, distributed, displayed or altered. You shall ensure that Third Party Authors’ names are visible on each Work displayed on Your Fotolia API Client and are preceded by the copyright symbol (“©”).
(d) Any time a Membership Name and Membership Password are sent to Fotolia through the Fotolia API, You shall secure such data transfer using a minimum of 128 Bit SSL encryption.
(e) You shall not attempt to conceal Your identity or the identity of Your Fotolia API Client when requesting authorization to use the Fotolia API or at any other relevant time.
(f) You shall not use the Licensed Materials to develop a Fotolia API Client that constitutes, promotes, or is used in connection with spyware, adware, other malicious programs or code.
(g) You shall not use the Licensed Materials in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality.
(h) You shall not use the Licensed Materials in a manner that adversely impacts, interferes with, or disrupts the Fotolia Website, Fotolia servers, or the Fotolia Image Bank, or use an unreasonable amount of bandwidth. Fotolia reserves the right, at any time and without notice, to limit the number of queries sent by You via the Fotolia API, both in the manner and in the amount of queries.
(i) You shall not sell, lease, or sell the Licensed Materials or access thereto. Except as expressly provided for in the Business API and the Partner API, You shall not derive any revenue from the use of the Licensed Materials.
(j) You shall not use any Fotolia Brand Feature in any manner that implies a relationship or affiliation with, sponsorship, certification or endorsement by Fotolia, other than Your use of the Fotolia API, or that can be reasonably interpreted to suggest editorial content has been authored by, or represents the views or opinions of, Fotolia. You shall place the following disclaimer on Your Fotolia API Client: “This product uses the Fotolia API, but is not certified, endorsed or sponsored by Fotolia. [Your Name] is not affiliated with or related to Fotolia.”
(k) You shall not cache or store any Works or other data obtained via the Fotolia API other than for reasonable periods.
(l) Your Fotolia API Client shall not contain or transmit any viruses, worms, Trojan horses or other code with malicious or disruptive and/or destructive features.
(m) You shall not use the Fotolia API to demonstrate a comparison between Fotolia and its competitors in relation to pricing or any other aspect, or to otherwise promote the goods or services of any Fotolia competitor.
(n) Except in respect of an Unlimited Monthly Subscription (as described below), You may not use the Fotolia API in conjunction with Fotolia’s subscription plan. For example, You may not use the Fotolia API in order to display Works to End Users, and then download the selected Works for such End Users by way of a subscription plan (other than with an Unlimited Monthly Subscription). Notwithstanding the above and notwithstanding anything to the contrary in Section 2.3 herein or elsewhere, a monthly subscription with an unlimited number of authorized users (as described in Fotolia’s Subscription Agreement) (the “Unlimited Monthly Subscription”) may be used in connection with the Fotolia API, such that the appropriate number of downloads will be deducted from such Unlimited Monthly Subscription in respect of each Work that is included in an End Product delivered to End Users; and for the avoidance of doubt, if one particular Work is included in End Products which are delivered to more than one End User, then the applicable number of downloads shall be deducted more than once from such Unlimited Monthly Subscription.3.3 Additional License Terms for Partner API.
All users of the Partner API also agree as follows:
(a) You shall not sell Works or allow Works to be downloaded from Your Fotolia API Client. You shall use the Partner API solely to redirect End Users to the Fotolia Website for such End Users to purchase or download Works. You shall not use the Partner API to illustrate or provide content to Your Fotolia API Client.
(b) You shall only derive revenue from Your use of the Partner API through Your participation in the Fotolia Affiliation Program. You shall not use the Partner API for any other commercial purpose and no fee shall be charged to End Users that use Your Fotolia API Client.
(c) You shall only derive revenue from the Affiliation Program in accordance with its terms and conditions. You shall only receive payments under the Affiliation Program if the link redirecting the End User to the Fotolia Website contains Your Affiliate ID in the manner described in the Fotolia API Specifications.
(d) Your Fotolia API Client shall display a link to the homepage of the Fotolia Website at all times.
(e) Your Fotolia API Client shall be publicly available and not require login or any other type of restricted access credentials.3.4 Additional License Terms for the Business API
All users of the Business API also agree as follows:
(a) You shall only use the Business API in order to sell End Products.
(b) All End Products shall be derivative works of the Works as defined under United States copyright law.
(c) You shall charge an amount for the End Product that exceeds the aggregate Fotolia Price for all Works contained therein.
(d) You acknowledge that you shall be the licensee for all Works contained in an End Product that is purchased or downloaded by an End User and You shall be subject to the applicable Download Agreement. Accordingly, You shall only use Works in the End Products in a manner that is consistent with the applicable Download Agreement.3.5 Additional License Terms for the Developer API
All users of the Developer API also agree as follows:
(a) You shall use the Developer API solely for non-commercial purposes. If Your Fotolia API Client derives revenue, or contemplates deriving revenue, it shall be considered a commercial use of the Developer API. Fotolia reserves the right to be the sole arbiter of the commercial or non-commercial status of Your Fotolia API Client and to monitor Your Fotolia API Client for as long as it uses the Developer API in order to determine its commercial or non-commercial status. If You wish to use the Developer API for commercial purposes, You must seek the permission of Fotolia by contacting Fotolia at: firstname.lastname@example.org[address].
(b) You shall not store, read or process any Membership Name and/or Membership Password of any End User. Such information shall be solely transmitted through the Developer API in a manner that is consistent with this Agreement and the Fotolia API Specifications.
(c)With the exception of End Users’ Membership Names and Membership Passwords, Your Fotolia API Client shall not ask for any other information from End Users.
Section 4. Modifications
Fotolia reserves the right to release subsequent versions of the Licensed Materials and to require You to obtain and use the most recent version thereof.
Section 5. Support
Fotolia may elect to provide You with support or modifications for the Licensed Materials (collectively, "Support"), in its sole discretion, and may terminate such Support at any time and without notice.
Section 6. Term and Termination
6.1 Fotolia reserves the right to change, suspend, or discontinue all or any aspects of the Licensed Materials, including their availability at any time and without notice or liability.
Section 7. Indemnity
Section 8. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE LICENSED MATERIALS IS AT YOUR SOLE RISK. THE LICENSED MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. FOTOLIA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) FOTOLIA MAKES NO WARRANTY THAT (i) THE LICENSED MATERIALS WILL MEET YOUR REQUIREMENTS, (ii) YOUR USE OF THE LICENSED MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE LICENSED MATERIALS WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY WORKS OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE USE OF LICENSED MATERIALS WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE LICENSED MATERIALS WILL BE CORRECTED.
(c) ANY WORKS OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE LICENSED MATERIALS IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FOTOLIA SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
Section 9. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT FOTOLIA SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF FOTOLIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE LICENSED MATERIALS; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE USE OF THE LICENSED MATERIALS; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY IN CONNECTION WITH YOUR USE OF THE LICENSED MATERIALS; OR (v) ANY OTHER MATTER RELATING TO THE LICENSED MATERIALS.
Section 10. Exclusions and Limitations
TO THE EXTENT SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 8 AND 9 MAY NOT APPLY TO YOU.
Section 11. Remedies
Section 12. Publicity
You may not market or promote Your Fotolia API Client, or make any public statements, including announcements or press releases, regarding Your Fotolia API Client, except with the prior written permission of Fotolia.
Section 13. General Provisions13.1 Entire Agreement
Fotolia shall have the right, in its sole discretion, to assign any or all of its rights or obligations hereunder. You shall have no right to assign any of Your rights or obligation hereunder.