Fotolia Subscription Agreement
- Price and Payment
- Subscriber Account Responsibilities
- Special Notice to California Subscribers
- Unused Downloads
- Representations and Warranties
This Subscription Agreement (the "Agreement") is by and between Fotolia LLC ("Fotolia") and the subscriber (the “Subscriber”). It sets forth the terms and conditions of Subscriber’s subscription to sublicense selected images, photographs and other content (each, a “Work”) from Fotolia (the “Subscription”) pursuant to the Fotolia subscription program (the “Subscription Program”). As a condition of the Subscription, Subscriber must accept this Agreement in its entirety.
SUBSCRIBER SHOULD REVIEW THIS AGREEMENT CAREFULLY AND INDICATE SUBSCRIBER’S ACCEPTANCE BY CLICKING ON THE "I AGREE" CHECKBOX ("CHECKBOX”). BY CLICKING THE CHECKBOX, SUBSCRIBER AGREES TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT.
1.1 The Fotolia Subscription Program is an electronic information service (the "Service") operated by Fotolia on the Internet (currently located at http://www.fotolia.com) (the “Service Website”). The Service offers Subscribers access to Works owned or licensed by Fotolia. Subscriber acknowledges that most, but not all, of the Works in Fotolia’s catalog are available pursuant to the Subscription Program.
1.2 Subscriber acknowledges that Subscriber is at least 18 years old, and Subscriber agrees to be bound by all of the terms in this Agreement. If Subscriber is subscribing to the Service in Subscriber’s capacity as an employee of a corporation or other legal entity, Subscriber acknowledges that Subscriber has the authority to enter into this Agreement on its behalf. The right to use the Service may not be transferred.
1.3 This Agreement shall commence on the date the payment is received by Fotolia and shall continue for the duration of the Subscription Subscriber has chosen, unless otherwise terminated pursuant to this Agreement (the “Term”).
2.1 Subscriber authorizes Fotolia to charge the applicable subscription fee ("Subscription Fee") to a valid credit card (or PayPal) account designated by Subscriber and approved by Fotolia. Subscription Fees will be charged at the standard rate in effect at the time the fee is payable. Current Subscription Fees and other charges can be found at http://en.fotolia.com/Info/Subscription. Subscriber agrees to pay all sales, use, and other similar taxes imposed in connection with Subscriber’s use of the Service. Subscriber is responsible for all Internet service provider fees, telecommunication and other charges required for Subscriber’s connection to the Service.
2.2. FOTOLIA WILL AUTOMATICALLY CHARGE SUBSCRIBER’S ACCOUNT FOR RENEWAL OF SUBSCRIBER’S SUBSCRIPTION AT THE APPLICABLE SUBSCRIPTION RATE UNLESS SUBSCRIBER CANCELS SUBSCRIBER’S SUBSCRIPTION AT LEAST FIFTEEN (15) DAYS BEFORE THE APPLICABLE SUBSCRIPTION RENEWAL DATE ; AND SUBSCRIBER MUST INFORM FOTOLIA OF SUCH CANCELLATION BY UPDATING THE RENEWAL OPTIONS AND SETTINGS IN SUBSCRIBER’S FOTOLIA ACCOUNT, WITHIN SUCH 15 DAY TIME FRAME (THE APPROPRIATE SETTINGS MAY BE FOUND IN THE “MY SERVICES” AREA OF THE SUBSCRIBER’S FOTOLIA ACCOUNT, UNDER THE "MY SUBSCRIPTION" SUBHEADING IN SUCH AREA, WHERE THE SUBSCRIBER CAN SELECT THE "NO RENEWAL AT EXPIRATION" OPTION). IN THE EVENT FOTOLIA IS UNABLE TO CHARGE SUBSCRIBER’S ACCOUNT THE APPLICABLE SUBSCRIPTION FEE, FOTOLIA RESERVES THE RIGHT TO TERMINATE SUBSCRIBER’S RIGHT TO USE THE SERVICE. FOTOLIA WILL USE REASONABLE EFFORTS TO SEND A REMINDER PRIOR TO THE END OF SUBSCRIBER’S CURRENT SUBSCRIPTION PERIOD TO THE E-MAIL ADDRESS SUBSCRIBER PROVIDED IN CONNECTION WITH SUBSCRIBER’S REGISTRATION ON THE FOTOLIA WEBSITE.
3.1 All use of the Service under Subscriber’s account (“Subscriber’s Account”) must comply with the provisions of this Agreement. Subscriber’s registration information must be kept accurate and current.
3.2 Subscriber is responsible for all usage or activity on Subscriber’s Account. SUBSCRIBER, AND NOT FOTOLIA, IS RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO SUBSCRIBER’S CREDIT CARD (OR PAYPAL ACCOUNT) INCLUDING THOSE MADE BY A THIRD PARTY THAT WERE NOT AUTHORIZED BY SUBSCRIBER.
3.3 Subscriber understands and agrees that Fotolia may, in its sole discretion: (i) monitor Subscriber’s use of the Service including the Works Subscriber downloads; (ii) flag Subscriber’s account if the number of daily/monthly downloads of Works exceeds daily/monthly maximums; (iii) track any abuse of Subscriber’s subscriber ID and password in connection with the Service or in connection with this Agreement; and (iv) terminate this Agreement, without notice, if Fotolia believes there is a violation of this Agreement and/or abuse of Subscriber’s ID and password. If Subscriber’s subscription is terminated because of any violation of this Agreement and/or any abuse of an ID or password, Subscriber loses all rights to use the Service and Works, including any rights which may survive termination of this Agreement, and Subscriber must immediately delete and cease use of all Works acquired from the Service.
3.4 Subscriber must maintain the confidentiality of Subscriber’s password. If Subscriber believes that Subscriber’s Account is not secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of Subscriber’s password), Subscriber must promptly change Subscriber’s password and inform Fotolia. Subscriber agrees to take all steps necessary to prevent any third party from duplicating or distributing any Works or any elements of the Service. Defamatory, offensive, pornographic, or otherwise unlawful uses of Works is prohibited. Use of any logo or trademark without authorization from its owner is prohibited. If Subscriber becomes aware of any activity that infringes any rights, including copyrights, in the Works or of the Service, Subscriber must promptly notify Fotolia and provide all cooperation reasonably requested by Fotolia regarding such activity.
3.5 Any fraudulent, abusive or otherwise illegal activity may be grounds for termination of Subscriber’s Subscription, at Fotolia's sole discretion, and appropriate law enforcement agencies may be notified. Subscriber may not use any means to circumvent the navigational structure or presentation of the Service or to index or improperly retrieve the Works, including but not limited to the use of any site search or retrieval application to "spider" the service. Subscriber may not translate, reverse engineer, decompile, or disassemble the Service or the Works, including any software provided in connection with the Service except to the extent the foregoing restriction is expressly prohibited by applicable law.
3.6 All Works downloaded during the Term of the Agreement can be used after the Term, provided the use is in compliance with this Agreement and the Download Agreement (Standard License) subject to Section 3.8 below.
3.7 If Subscriber downloads any Works from the Service Website, then Subscriber’s use of such Works shall be subject to the terms of Fotolia’s Download Agreement, subject to Section 3.8 below.
3.8 Subject to the below provisions in this Section 3.8, the Service may be used only by one individual (i.e., by Subscriber, or by one individual on behalf of Subscriber if Subscriber is an entity) and Subscriber may not transfer Subscriber's right to use the Service to any other person or entity (including, without limitation, to any affiliated entity of the Subscriber). Notwithstanding anything to the contrary in this Agreement and/or the applicable download agreement(s), the Subscriber may have the option to select and pay for an increase to the number of authorized users of the Service (a "User Increase"), which allows for either three users or an unlimited number of users from among the personnel of the Subscriber only, whereby it is clarified that the Service may not be used by any third party or entity other than the Subscriber’s authorized users, and, for the avoidance of doubt, any entity affiliated to the Subscriber may NOT use the Service nor access any Works downloaded thereby. If the Subscriber selects and pays for a User Increase, then either three individuals or an unlimited number of individuals (as applicable) may use the Service solely on behalf of the Subscriber; and furthermore, any Works downloaded under such Subscription may be used by any and all of such authorized users subject to the terms of the Download Agreement (Standard License) solely on behalf of the Subscriber, and accordingly the restriction set forth in Section 3(d) of the Download Agreement (Standard License) shall not apply to such authorized users (i.e. the same Work may be downloaded and stored on either three authorized user’s computers or on an unlimited number of authorized user’s computers, as applicable). Subject to applicable law: Fotolia reserves the right to request a list of the names of the Subscriber’s authorized users and Subscriber must promptly provide such list; and the Subscriber and each such authorized user shall be jointly and severally liable towards Fotolia for full compliance with this Agreement.
3.9 More detailed information regarding the Subscription Program can be found at http://en.fotolia.com/Info/Subscription/Details. Such information may include, without limitation, details about subscription options, User Increases, and daily/monthly download limits (including how the number of downloads is calculated) and the Subscriber hereby agrees that such information, as may be changed by Fotolia from time to time, shall govern the Subscription; provided however that in the event of a conflict between this Agreement and such information, then this Agreement shall prevail.
3.10 During the term of an existing Monthly Subscription only, Fotolia may provide the Subscriber with the option of purchasing additional download capacity in respect of the then-current month (“Additional Downloads”). Pricing for such Additional Downloads will be as set forth by Fotolia on its website or elsewhere. Such Additional Downloads shall be added onto the existing download capacity (if any) remaining to the Subscriber under its then-current Monthly Subscription, but only in respect of the month such Additional Downloads were purchased. At the end of such month, any unused Additional Downloads (if any) may carry over to subsequent months, but only to the extent permitted under Section 6.2 below, if applicable. For clarity, the purchase of Additional Downloads shall not affect the number of downloads to be allotted under the then-current Subscription for subsequent month(s) or renewal(s). A “month” refers to a thirty-day period, and is not necessarily a calendar month.
4.1 Either Subscriber or Fotolia may terminate this Agreement and Subscriber’s Account at any time, with or without cause. Additionally, Subscriber’s right to use the Service and/or any Work will terminate immediately upon Subscriber’s breach of any material term of this Agreement. In the event that Subscriber is dissatisfied with the Service for any reason whatsoever the only right available to Subscriber is to terminate Subscriber’s Account by providing notice to Fotolia pursuant to this Agreement. Fotolia may suspend or terminate Subscriber’s Account, without notice, in the event of Subscriber’s breach of this Agreement or for other conduct which Fotolia, in its sole discretion, considers to be unacceptable. Suspension or termination of Subscriber’s Account means that the Service will no longer be accessible to Subscriber. Fotolia shall not be responsible for any consequences of such lack of access.
4.2 The provisions concerning payment obligations, Subscriber responsibilities, subscriber information, ownership of copyright and other intellectual property rights, limitations on use, disclaimers, limitations of liability, indemnification, termination, and the miscellaneous provisions of this Agreement shall survive the termination of the Agreement or Subscriber’s Account, whether by Subscriber or Fotolia.
4.3 Subscriber agrees that Subscriber is responsible for all charges incurred up to the time the account is deactivated. For the avoidance of doubt, all fees are non-refundable, even if the Subscription is terminated prior to its expiry date.
5.1 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 718-577-1321. (b) For a description of all current fees and charges, see http://en.fotolia.com/Info/Subscription. 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 718-577-1321. 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.
6.1 If Subscriber does not download the maximum number of Works that Subscriber is entitled to download under the terms of Subscriber’s Subscription plan on any given day, the unused number of permissible downloads will automatically be forfeited and will not carry over to any future day; provided however that the carryover of unused downloads with respect to Monthly Subscriptions (as such term is described below) shall be governed in accordance with Section 6.2 below.
6.2 In respect of Monthly Subscriptions only, if Subscriber does not download the maximum number of Works that Subscriber is entitled to download under the terms of Subscriber’s Monthly Subscription plan during any given month of such a Subscription, then the unused number of permissible downloads will automatically be forfeited and will not carry over to any future months or future Subscriptions, unless (i) such Monthly Subscription is still in effect or (ii) the Subscriber has renewed such Monthly Subscription without letting it lapse and without replacing it with a Subscription of lesser value.
For clarity, all such unused downloads from Monthly Subscriptions will automatically be forfeited, and will not carry over to any future months or future Subscriptions, immediately upon the occurrence of: (i) a lapse in Subscription (i.e. any point in time when the relevant Subscription has expired and has not been continuously renewed or any point in time when an appropriate Monthly Subscription is not in effect); and/or (ii) a renewal where the renewed Subscription is of lesser value in comparison with the Subscription that was in effect immediately prior to such renewal (for example, the renewed Subscription includes fewer permitted downloads or fewer authorized users or is shorter in duration than the previous subscription; or any other similar downgrade in value or quality) and/or (iii) a renewal where the renewed Subscription is not a Monthly Subscription.
A “Monthly Subscription” refers to a Subscription where the Subscriber is entitled to a certain number of downloads over the course of a given month or 30 day period, as opposed to download limits being linked to a daily amount or otherwise.
7.1 In addition to the representations and warranties made by Subscriber above, each of Fotolia and Subscriber hereby represent and warrant that it, or he or she, has the right to enter into this Agreement.
8.1 This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to any conflict of laws principles. Any legal action, suit or proceeding arising out of or relating to this Agreement shall be instituted in a court of competent subject matter jurisdiction in the federal or state courts of the State of New York, and Subscriber and Fotolia each submit to the personal jurisdiction of such court and waive any right each might otherwise have to claim lack of personal jurisdiction or inconvenience of forum.
8.2 The relationship between Fotolia and Subscriber under this Agreement is that of independent contractors. For clarification purposes, the parties are not joint ventures, partners, principal and agent, or employer and employee. Neither party shall have the power to bind or obligate the other in any manner.
8.3 Subscriber agrees that he or she shall be responsible for all use, sales, value-added and similar taxes and duties imposed by any governing authority in any jurisdiction in connection with the license granted to him or her under this Agreement.
8.4 No waiver on the part of Fotolia to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of Fotolia to exercise any such power, right, privilege or remedy, shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
8.5 Fotolia shall have the right, in its sole discretion, to assign any or all of its rights or obligations under this Agreement. Subscriber shall have no right to assign any of his or her rights or obligations under this Agreement.
8.6 This Agreement shall be inure to the benefit of, and be binding upon, Fotolia and Subscriber, and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer upon any person or entity, other than Fotolia and Subscriber, and their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
8.7 Whenever the context so requires, the singular number shall include the plural and vice versa, and the masculine, feminine and neutral genders shall include each other.
8.8 If any term or provision of this Agreement is invalid, illegal or unenforceable, all other terms and conditions of this Agreement shall nevertheless remain in full force and effect.
8.9 The underlined headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement