Terms and Conditions
This Agreement is collectively governed by: 1) the following terms and conditions, 2) the Content-Specific Invoice (“Invoice”), and 3) the Content Specific Online Webpage(s) located at www.terrysmithimages.com (“Content Specific Web Page”) (“collectively, the “Agreement”). This Agreement governs access and use of all material, images and footage (collectively, “Content”) available from Terry Smith Images. By obtaining, using or paying for any Content from Terry Smith Images, licensee agrees to be bound by and comply with all of the terms of the Agreement.
1. Definitions: All capitalized terms shall have the meaning set forth herein (entitled “Defined Terms”) and elsewhere in these terms and conditions.
(a) “Comps” means Content licensed solely for Licensee’s evaluation to determine whether the Content is appropriate for Licensee’s intended End Use.
(b) “End Use” means the final work product created with the Content as authorized hereunder and excluding Comp uses, and in the case of Rights Managed Content as specified on the Invoice.
(c) “License” means the permission granted by Terry Smith Images to Licensee to use the Content as specified in and subject to the terms and conditions of the Agreement
(d) “Material”, “Images” and “Footage” mean all material, images and footage clips, respectively, and related informational materials in any medium obtained from or furnished by Terry Smith Images hereunder, including without limitation related metadata, text, captions, or information.
(e) “Model Release” means that the contributor/photographer of Content has obtained permission for all permitted licensing type uses from people who are visible and recognizable in the Content.
(f) “Property Release” means that the contributor/photographer of Content has obtained permission for all permitted licensing type uses from the owner of the tangible property depicted in the Content. “Property Release” does not include any permission for any intellectual property depicted in the Content.
(g) “Rights Managed Content” means Content licensed for a fee on a per-use basis and expressly designated as “Rights Managed” or “RM” by Terry Smith Images.
(h) “Royalty-Free Content” means Content licensed for an unlimited number of permitted uses for a one-time flat fee and expressly designated as “Royalty-Free” or “RF” by Terry Smith Images.
2. Parties: This Agreement is binding between Terry Smith Images (“Terry Smith Images”) and Licensee. “Licensee” means: (a) the individual listed as the registrant of the Terry Smith Images account through which the License is granted (“Registrant”), and (b) if Registrant is entering into this Agreement for the benefit of, or as an agent on behalf of, Registrant’s employer (“Employer”) or a third party (“Principal”), then such Employer or Principal. If Registrant is entering into this Agreement for the benefit of his/her Employer, or as an agent on behalf of Principal, then Registrant (x) represents and warrants that such Employer or Principal has authorized Registrant to enter into this Agreement, that the Licenses granted hereunder are on such Employer’s or Principal’s behalf, that such Employer or Principal has agreed to be bound hereby; (y) the Content and End Use is solely for the benefit of Employer or Principal, and that Registrant will not use the Content or End Use for the benefit of any other person or entity without entering into a separate License with Terry Smith Images; and (z) in the case of an agent/Principal relationship, Registrant shall be jointly and severally liable for any breach of the terms of this Agreement by Principal. If Registrant requests any Terry Smith Images employee or contractor to facilitate Registrant obtaining any Content hereunder on behalf of Licensee and through use of Registrant’s account, Licensee agrees to be bound by this Agreement as if Registrant had directly obtained the Content.
3. Prints and Products:
Terry Smith Images reserves the right to reject any order and all orders are only accepted at our sole discretion. Terry Smith Images reserved the right to withdraw any of the goods marked as for sale at any time. The prices of goods as published on this site exclude any postage and handling fees, framing, or taxes unless otherwise stated.
Delivery of the order will be made to the address details as shown on the order. Any inaccurate details entered on the order will be the responsibility of the purchaser. Ownership of the goods as detailed on any order shall not pass to the purchaser until Terry Smith Images has received cleared funds payment in full of the price of the goods purchased. If your delivery address is not within the United States, you may be subject to import duties and taxes, which are levied once a shipment reaches your country. Any such additional charges for customs clearance must be borne by the purchaser.
For refunds the amount of refund will be made in accordance with the amount paid. If any promotional or discount value was used for the original purchase, it is this discounted amount that will be refunded, not the full value of the goods.
Upon delivery of an order, purchasers must notify Terry Smith Images within 7 working days of any damage or defect to the goods. A full refund will be made within 30 days of receiving the returned damaged goods and acceptance by Terry Smith Images of the damage claim. All goods must be returned complete and undamaged (excepting damage claims) using the original packing where possible and using the delivery service as provided by Terry Smith Images.
(a) Generally: Any and all Licenses granted by Terry Smith Images are conditioned upon (i) Licensee’s compliance with all material provisions of this Agreement, including without limitation Terry Smith Images’ receipt of full payment of the applicable Invoice, and (ii) Licensee entering into this Agreement without having received notice of unauthorized use of the Content. Terry Smith Images reserves all rights not specifically granted in this Agreement.
(b) Who May Use the Content: The Licenses granted are limited and Licensee may not sell, rent, loan, give, sublicense or otherwise transfer the Content or any right to use the Content except as may otherwise be specifically stated herein or on the applicable Invoice, and insofar as the Content has been incorporated into the permitted End Use. Only Licensee may use the Content and the End Use must be solely for Licensee’s own use. Licensee’s employees and contractors (if any) may use the Content as necessary to create the End Use as provided herein, provided that each such employee or contractor has agreed to comply with the terms hereof, and further provided that Licensee remains liable for any breach of the terms of this Agreement by such employee(s) or contractor(s).
(c) License Types:
(i) Rights Managed Content: Subject to the terms and conditions of this Agreement, but excluding the rights granted in Section 4(c)(ii) and (iii) below, Terry Smith Images grants Licensee a limited, non-exclusive right to incorporate the Rights Managed Content licensed hereunder in the End Use solely as specified in the Invoice, and as limited in the Content Specific Web Page(s). Unless otherwise stated in the Invoice, the License granted provides one (1) year from the date the applicable Invoice is issued to incorporate the Rights Managed Content into the End Use. Licensee may distribute, publish, display or otherwise exploit the End Use in the manner and for the length of time as specified on the applicable Invoice.
(ii) Royalty-Free Content: Subject to the terms and conditions of this Agreement, Terry Smith Images grants Licensee a limited, non-exclusive, perpetual and worldwide right to use the Royalty-Free Content (except as may otherwise be specified in the applicable Content Specific Web Page(s) or Invoice) to create and exploit any End Use in any and all media now known or hereafter devised, for any purpose not otherwise prohibited under this Agreement. Unless otherwise specified on the Invoice, the rights granted under
this Paragraph include the right to make the Royalty-Free Content available to ten (10) separate individuals for the sole purpose of manipulating or otherwise using the Royalty-Free Content to create the End Use according to the terms provided herein.
(iii) Comps: Subject to the terms and conditions of this Agreement, Terry Smith Images grants Licensee the right to use the Content solely for Licensee’s evaluation to determine whether Licensee intends to obtain an applicable Rights Managed or Royalty-Free License for the Content. No other use is allowed. Unless otherwise stated in the applicable Invoice, the Comps License automatically expires sixty (60) days from the date of download or receipt (“Comps Term”). Licensee may not store, copy, distribute, publish, display or otherwise use in any way the Content upon the expiration of the Comps Term without obtaining an appropriate License for that Content. If Licensee does not obtain such a License, upon expiration of the Comps Term, Licensee must destroy all copies of the Content. Terry Smith Images reserves the right to charge Licensee an administrative fee if Licensee fails to confirm to Terry Smith Images its destruction of such Content within 10 days of the expiration of the Comps Term.
5. Ownership and Intellectual Property: Terry Smith Images and its Content sources retain all right, title, and interest in and to all of the copyrights and any other proprietary rights in the Content. No rights in any Content are granted except the Licenses specified in this Agreement. Any right, title or interest arising in any compilation or derivative work created using any Content shall not entitle Licensee to use any Content except as permitted hereunder.
6. Releases and Clearances: Content may contain listed restrictions (either on the Invoice or Content Specific Web Page), including, without limitation, restrictions as to time, manner, industry and territory of use, and required pre-approval by depicted people or their representatives. Subject matter depicted in the Content may be subject to copyrights, trademarks, rights of publicity, moral rights, property rights or other rights belonging to another party. Except as may be specifically stated in the Invoice or the Content Specific Web Page applicable to the licensed Content, the rights Terry Smith Images grants to Licensee do not include a license to, and Terry Smith Images makes no representations or warranties that it owns or licenses any rights related to or in any persons, places, property (real, personal or of any other kind) or subject matter depicted in any Content. Licensee is solely responsible for determining whether Licensee’s use of any Content requires the consent of any other party or the license of any additional rights. Licensee is solely responsible for obtaining any and all releases and clearances as may be required, including without limitation (a) rights from any representative guild, union, professional organization, or other authorized representative; and (b) if any music is included in the Content, master use, synchronization and performance licenses from the copyright proprietors of the applicable master recording(s) and composition(s) and such other persons, firms or associations, societies or corporations as may own or control the performing or other rights. Licensee is responsible for consulting with its own legal counsel to determine whether additional rights are needed for the intended End Use. Licensee may not rely on any statements made by any Terry Smith Images employee or representative other than those made in the Agreement.
7. Limited Warranty and Disclaimer:
(a) Terry Smith Images warrants that:
(i) the Content, when used as authorized under this Agreement (x) will not infringe the rights of the copyright holder of the Content, (y) and if the Content Specific Web Page indicates that there is a model release, will not violate any individual’s right of publicity or privacy and (z) if the Content Specific Web Page indicates that there is a Property Release, will not violate any individual’s tangible property rights,
(ii) it has sufficient rights to enter into this Agreement and grant the rights provided herein; and(iii) the digital copy of the Content provided by Terry Smith Images will be free from defects in material and workmanship (but not visual artifacts inherent in the original Content). Ninety (90) days following delivery, Terry Smith Images will, as Licensee’s exclusive remedy for Licensee’s inability to use any Content as the result of such material and workmanship defects, provide a replacement of the digital copy of such Content or, in Terry Smith Images’ sole discretion, terminate the License and refund any fee actually paid by Licensee to Terry Smith Images, provided Licensee has not made any use the Content.
(b) Terry Smith Images makes no warranties, nor shall Terry Smith Images be liable, for any claims related to or arising from Licensee’s use of Content which:
(i) except for the explicit warranties stated in Section 7(a)(i) and (ii) above, arise from any third party rights, including without limitation any copyright, trademark, trade dress, personality right or right of privacy, depicted in the subject matter of the Content or as specified in Section 6 above;
(ii) but for Licensee’s modification of such Content or combination of such Content with other Content, products, text, content or materials, such claims would not have arose; or
(iii) arose after Terry Smith Images has otherwise notified Licensee not to use the applicable Content.
(c) While Terry Smith Images makes efforts to use accurate caption information, Terry Smith Images does not warrant that such information is accurate. Terry Smith Images provides Licensee with its online system on an “as is” basis without warranty of any kind, including warranty of continued access or availability or against interruption of service.
EXCEPT AS IS EXPRESSLY STATED HEREIN, TERRY SMITH IMAGES, ON BEHALF OF ITSELF AND ITS CONTENT SOURCES MAKES NO OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY REGARDING ANY CONTENT, ITS ONLINE SYSTEMS, OR ANY RIGHTS OR LICENSES UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability: EXCEPT FOR ANY LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED, NEITHER TERRY SMITH IMAGES NOR ANY TERRY SMITH IMAGES SUBSIDIARY, SUCCESSOR, PREDECESSOR, PARENT, JOINT VENTURE, AFFILIATE, OFFICER, DIRECTOR, EMPLOYEE, CONTRACTOR, CONTENT SOURCE, AGENT OR SUBAGENT SHALL BE LIABLE TO LICENSEE OR ANY OTHER THIRD PARTY CLAIMING THROUGH LICENSEE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, STATUTORY OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR RELATING TO THIS AGREEMENT AND/OR LICENSEE’S USE OR INABILITY TO USE THE CONTENT, WHETHER FRAMED AS A BREACH OF WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, IN TORT, CONTRACT, FAILURE OF ESSENTIAL PURPOSE, OR OTHERWISE. IN NO EVENT SHALL TERRY SMITH IMAGES' OR ANY ITS SUBSIDIARIES’, SUCCESSORS’, PREDECESSORS’, PARENTS’, JOINT VENTURES’, AFFILIATES’, OFFICERS’, DIRECTORS’, EMPLOYEES’, CONTRACTORS’, CONTENT SOURCES’, AGENTS’ OR SUBAGENTS’ TOTAL AGGREGATE LIABILITY TO LICENSEE OR ANY THIRD PARTY CLAIMING THROUGH LICENSEE ARISING FROM THIS AGREEMENT, ITS TERMINATION OR EXPIRATION, AND/OR LICENSEE’S USE OF ANY CONTENT PROVIDED HEREUNDER, EXCEED $25,000. THE FOREGOING LIMITATIONS ARE APPLICABLE NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
9. Terry Smith Images’ Indemnification of Licensee: Terry Smith Images agrees to indemnify and hold harmless Licensee, its officers, directors and employees (collectively, the “Licensee Indemnified Parties”) from any and all loss or damage arising out of any claim by a third party based on Terry Smith Images’ breach of the warranties in Section 7 (“Licensee Claim”) by paying that portion of the final judgment (including reasonable outside attorneys’ fees and costs awarded, if any) entered against the Licensee Indemnified Parties by a court of competent jurisdiction on such Licensee Claim. Terry Smith Images shall have the right, but not the obligation to defend and control the defense of any such Licensee Claim and to choose counsel for such purpose, provided that the Licensee Indemnified Party may participate at its own cost and expense. Notwithstanding the preceding, Terry Smith Images shall have no obligation under this Section 9 if Licensee does not provide Terry Smith Images with prompt written notice of Licensee’s receipt of any Licensee Claim and such delay impairs Terry Smith Images’ ability to defend its rights. Terry Smith Images will not agree to any stipulation, admission, or acknowledgment of any fault, guilt, wrongdoing or liability on the part of any Licensee Indemnified Party without Licensee’s prior written consent. Terry Smith Images will not settle any Licensee Claim on any Licensee Indemnified Party’s behalf or publicize any settlement without Licensee’s prior written consent.
10. Licensee’s Indemnification of Terry Smith Images: Licensee agrees to indemnify and hold harmless Terry Smith Images and its Content sources, officers, directors and employees (collectively, the “Terry Smith Images Indemnified Parties”), from any and all loss or damage arising out of any claim by a third party based on (i) Licensee’s material breach of any terms, conditions or restrictions of this Agreement, (ii) to the extent that it gives rise to the claim, Licensee’s use or modification of any Content, or combination of any Content, with any text or other content, (iii) Licensee’s failure to obtain from third parties all permissions necessary to use the Content, and (iv) Content which Terry Smith Images has notified Licensee not to use (collectively, the “Terry Smith Images Claim”) by paying that portion of the final judgment (including reasonable outside attorneys’ fees and costs awarded, if any) entered against the Terry Smith Images Indemnified Parties by a court of competent jurisdiction on such Terry Smith Images Claim. Licensee shall have the right, but not the obligation to defend and control the defense of any such Terry Smith Images Claim and to choose counsel for such purpose, provided that the Terry Smith Images Indemnified Party may participate at its own cost and expense. Notwithstanding the preceding, Licensee shall have no obligation under this Section 10 if Terry Smith Images does not provide Licensee with prompt written notice of Terry Smith Images’ receipt of any Terry Smith Images Claim and such delay impairs Licensee’s ability to defend or its rights. Licensee will not agree to any stipulation, admission, or acknowledgment of any fault, guilt, wrongdoing or liability on the party of any Terry Smith Images Indemnified Party without Terry Smith Images’ prior written consent. Licensee will not settle any Terry Smith Images Claim on any Terry Smith Images Indemnified Party’s behalf or publicize any settlement without Terry Smith Images’ prior written consent.
11. Alterations to Editorial and Fine Art Content: Special ethical considerations apply to editorial, news, and fine art Content. When using such Content, Licensee is solely responsible for, and shall indemnify Terry Smith Images for any claims related to or arising from any modifications to or alterations of the Content (except for standard color correction or minor cropping for space limitations) or to the caption information.
12. Unauthorized End Uses: Content may not be used as a trademark or logo, for use as pornography, unlawful purpose or use, in a manner that defames any person, or violates any person’s right of privacy, publicity or moral rights, or infringes upon any copyright, trade name or trademark. Licensee does not acquire, and shall not claim, any rights in the Content itself apart from the End Use. Unauthorized use of Content may constitute infringement of copyright and other applicable rights and shall entitle Terry Smith Images to seek all rights and remedies under applicable copyright and other laws, including monetary damages against all users and beneficiaries of the use of such Content. Terry Smith Images in its sole discretion reserves the right to bill Licensee (and Licensee hereby agrees to pay) ten (10) times the license fee for any unauthorized use, or pursue any other fees, damages and penalties Terry Smith Images may be entitled to under this Agreement and applicable law. The foregoing is not a limiting statement of Terry Smith Images’ or its Content sources’ rights or remedies in connection with any unauthorized use of the Content or breach of the Agreement.
13. Payment/Reporting: Licensee hereby agrees to and is required to pay Terry Smith Images for all Content that Licensee obtains, regardless of whether Licensee uses the Content unless cancelled pursuant to Section 15 below. Payment is due within thirty (30) days of the date the applicable Invoice is issued, or the date specified in the Invoice, whichever comes first. A late payment charge of one and one-half percent (1.5%) per month or the greatest amount allowed under applicable law may be added to any unpaid balance after thirty (30) days.
14. Taxes: All amounts due for the licensing of Content are reflected before any Applicable Sales Tax, for which Licensee is solely responsible. Applicable Sales Tax means any sales tax, use tax, value added tax, goods & services tax or any other similar tax computed on an ad valorem basis. Terry Smith Images will add any Applicable Sales Tax to its invoice when required to do so.
(a) By Licensee: If Licensee cancels any License within seven (7) days from the date of the Invoice, Licensee will be charged a fifty (US$50) dollar transaction fee per item of Content. If the cancellation notice is received more than seven (7) days, but less than thirty (30) days after the Invoice date, a cancellation fee equal to fifty percent (50%) of the amount of the Invoice will be charged. After thirty (30) days, no cancellations will be accepted and Licensee is responsible for and must pay the full amount of the Invoice. For any cancellations, Licensee must also pay any and all applicable service charges, production fees, processing and handling fees and shipping fees related to the cancelled Invoice. All Licenses applicable to the cancellation shall immediate terminate upon cancellation and no End Use may be made of the applicable Content. All cancellations are final.
(b) By Terry Smith Images: If Licensee breaches any provision of this Agreement, and such breach remains uncured for fourteen (14) days after Licensee’s receipt of notice from Terry Smith Images of such breach, this Agreement and the License to the Content will automatically terminate. Upon any termination of this Agreement for uncured breach, neither Licensee nor any other person or entity covered by the license granted to Licensee under this Agreement shall have any further right to make any use of the Content or the End Use.
16. Copies: At Terry Smith Images’ reasonable request, Licensee shall provide to Terry Smith Images free of charge one (1) copy of any End Use made of the Content as authorized hereunder to verify License compliance. In addition, upon consent by Terry Smith Images, Licensee hereby allows Terry Smith Images to use, without charge, Licensee’s End Use in displays and presentations for Terry Smith Images’ marketing purposes, solely to demonstrate how Licensee has used the Content.
17. Storage of Content: In producing the End Use as authorized hereunder, Licensee shall limit access to the Content to those having a bona fide need to facilitate production or creation of any such authorized End Use. Upon termination and/or expiration of the License, Licensee agrees to cease use of all Content and shall promptly delete or destroy any digital copies.
18. Footage-Specific Content (Footage Type): All Footage is licensed by the “cut” unless specifically noted. A “cut” shall be defined as one continuous scene from camera start to camera stop. All “cuts” are licensed at a per second charge with a ten second minimum charge per “cut”. Any multiple uses of any “cut”, splitting of any “cut”; or speeding, slowing or freezing of any “cut” is subject to additional charges. If the Footage is licensed by the “second” instead of by the “cut”, Licensee shall pay for the actual running time of the Footage. Any duplicate usage of the Footage, freeze frames, or slow motion shall be calculated at the actual on-screen running time of the Footage. All Footage licensed by the “second” may be subject to minimums based upon the agreed per second rate.
19. Protection of Content: If use of Content is permitted on the Internet, or any other online or interactive media, Licensee shall use commercially reasonable efforts to protect the Content to ensure that it cannot be copied, and in the case of Footage, ensure that it remains in the linear production for which it was licensed and cannot be searched by shot and downloaded in broadcast or substantially comparable quality.
20. Credit Line and Copyright Notice: In the case of Images, for editorial uses, Licensee shall include a copyright notice and credit adjacent to each Image, or in a manner consistent with industry standards, (in the format: “©Terry Smith Images” or as specified on the Content Specific Web Page) with each publicly distributed Image. Receiving credit is a material aspect of the Agreement for Terry Smith Images. For commercial uses, Licensee agrees to include the credit described above when such crediting is customary and appropriate. In the case of Footage, Licensee shall provide copyright attributions to Terry Smith Images in the production, and on-screen credits as specified in the invoice, equal in all respects to any credit accorded to any other provider of comparable services.
21. Trademarks: Except for credits as required above, neither party may use the other party’s trademarks or service marks without such party’s prior written consent.
22. Choice of Law / Jurisdiction / Attorneys’ Fees: This Agreement, any claim, controversy or dispute arising under or related to this Agreement, the relationship of the parties and the interpretation and enforcement of the rights and duties of the parties will be governed by the laws of the State of Arkansas, and the parties agree to accept the exclusive jurisdiction of the state and federal courts located in Little Rock, Arkansas regardless of conflicts of law principles. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed. The parties hereto confirm that it is their wish that this Agreement as well as any other documents relating hereto, including notices, has been and shall be written in the English language. In any dispute between Terry Smith Images and Licensee for breach of this Agreement the prevailing party shall be entitled to recover its reasonable attorneys’ fees.
23. Confidentiality: During this Agreement, one party (“Disclosing Party”) may provide the other (“Receiving Party”) with certain pricing, technical, marketing and other confidential information. The Receiving Party agrees to maintain the confidentiality of any Confidential Information shall not use or disclose the same without the prior written consent of Disclosing Party. “Confidential information” includes any information that is either designated as confidential by Disclosing Party or that, under the circumstances surrounding the disclosure, ought in good faith to be treated as confidential.
24. Survival: Sections 1, 2, 4(a), 5-10, 13-17, and 19 - 25 shall survive termination or expiration of the Agreement.
24. Miscellaneous: This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and merges all prior and contemporaneous communications. This Agreement shall not be modified except by a written agreement signed by duly authorized representatives of Terry Smith Images, provided that no purchase order or similar document issued by Licensee shall modify this Agreement even if signed by Terry Smith Images. If either party’s performance of any of its obligations hereunder is delayed by labor dispute, war, governmental action, acts of terrorism, flood, fire, explosion, other act of nature, the public enemy, or any other matter not within such party’s reasonable control, then the date for performance shall be extended by the time of such delay. If any provision of this Agreement is found invalid or unenforceable, the remainder of this Agreement shall remain valid and enforceable according to its terms. Accordingly, the parties agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable and in such manner as comes closest to the intentions of the parties to this Agreement as is possible. This Agreement will inure to the benefit of and be binding upon the parties, their successors and assigns, except that Licensee may not assign or transfer this Agreement without Terry Smith Images’ prior written consent.