ARTIST'S SUPPLY AGREEMENT (EXCLUSIVE)
Effective November 07, 2017
This Agreement governs the terms by which photographers, videographers or other artists provide stock photographic, video and other media content to members of the iStock.com community, on an exclusive
basis through the website located at www.istockphoto.com (the “iStock Site”), and to other prospective purchasers through other distribution venues as provided for in this Agreement. For the non-exclusive Artist's Supply Agreement, go to the iStock contributor enrollment website.
Background of Agreement
If you have access to this Agreement, you qualify for the exclusivity program of iStock whereby in return for increased compensation, artists agree to provide exclusivity to iStock for elements of the visual content produced by them. Because iStock offers different categories of content, this agreement may differentiate among categories of content that you produce, such as still photography, which includes 3D renders (collectively, “Photo Content”), illustrations (for greater clarity, illustrations include all vector files and raster files, including but not limited to scans of works of art that otherwise meet iStock standards and digital scans) (“Illustration Content”), or video files, animations (“Video Content”) and related material produced by you. Exclusivity with respect to one or more categories of Exclusive Content (as defined below) depends on your qualification under each such category, your application for exclusivity and iStock’s acceptance of such application. If you do not wish to provide such exclusivity, but wish to provide royalty-free stock Content on a non-exclusive basis, the correct agreement can be found on the iStock contributor enrollment website Changing the file type of Exclusive Content does not enable otherwise Exclusive Content to become non-exclusive Content.
This is a fairly lengthy document, and it contains many important provisions that affect your rights and obligations. By confirming your acceptance of this Agreement this becomes a binding legal agreement between any member intending to upload data or materials to iStock on an exclusive basis for the relevant category of content (in this agreement referred to as “you”) and Getty Images (US), Inc. (in this agreement referred to as “iStock”). If you are a corporation or other entity or a minor you may be subject to further filing requirements. We encourage you to print a copy of the Agreement for your records.
You wish to appoint iStock as its exclusive agent to license, sublicense and distribute Exclusive Content (as defined below) on the terms and conditions set forth in this Agreement. Upon accepting the terms of this Agreement, you may make Exclusive Content available to iStock by following the "upload" procedures identified by iStock from time to time. Each upload of Exclusive Content will be governed by the terms and conditions of this Agreement.
This Agreement remains in full force and effect until terminated in accordance with its terms. If at any time the terms and conditions of this Agreement are no longer acceptable to you, you must follow the termination procedures set forth below under "Term and Termination".
Provision of Exclusive Content
In this Agreement, "Exclusive Content" means, as applicable to you, one or more of (i) Photo Content, (ii) Illustration Content, or (iii) Video Content (collectively, “Content”); together in any case with other information, documents (such as model or property releases) or software relating to same, as the case may be or otherwise required to enable iStock to realize the commercial potential of the rights granted in the Content (“Descriptive Information”); but shall not include (1) Content that is produced as "work for hire" within the meaning of United States federal copyright legislation or is otherwise the result of a specific commission by your bona fide client evidenced by written agreement where the Content deliverable from such commission is for the personal use of the client and not for resale or license to any other person or entity, except to the extent you retain in such Content any royalty free rights of the type outlined in the Content License Agreement; (2) Content that is produced for "Editorial" purposes except to the extent you are certain that such Content may be licensed, sub-licensed and/or distributed on a royalty free basis as in the Content License Agreement, where "Editorial" means visual reporting to illustrate general interest and specialty stories for information, documentary or photojournalism (but not advertorial) purposes only; (3) Content that is "Rights Managed", which is defined as Content produced by you and licensed for a fee that is based on one or more limited uses and for which usage history is tracked; (4) Content that is of a category not currently offered for sale by iStock; or (5) other Content specifically designated by you and agreed by iStock as being non-exclusive Content.
Notwithstanding the definition of Exclusive Content and the exclusive license granted in this Agreement, nothing shall restrict you from (i) establishing or maintaining a personal portfolio on the Internet where Exclusive Content is posted for the purposes of art display so long as you are not licensing or giving away rights to the Exclusive Content for anything other than such display; or (ii) using Exclusive Content in connection with the sale by Supplier of prints, t-shirts and other merchandise so long as you are not licensing or giving away rights to the Exclusive Content for anything other than such merchandising.
You will provide Exclusive Content to iStock using the upload procedures and policies set out by iStock from time to time or such other procedures and policies as the parties may mutually agree. iStock, in its sole discretion, may determine which of such Exclusive Content is suitable for posting on the iStock Site or other means of direct or indirect distribution, and only such Exclusive Content as it deems suitable will be considered "Accepted Exclusive Content" for the purposes of applicable provisions of this Agreement. Although iStock may permit Content to be submitted pursuant to certain applications from time to time, your ability to submit further Content under this Agreement shall be subject to policies and procedures outlined by iStock from time to time.
In addition to the terms of this Agreement, the parties acknowledge that iStock's exclusivity program and the provision of all Content, including Exclusive Content, are subject to the policies and procedures outlined by iStock from time to time, the terms of which are incorporated by reference into this Agreement. Any breach of the rules relating to the exclusivity program and Exclusive Content will be deemed to be a breach of this Agreement.
Grant of Authority
You hereby appoint iStock as your exclusive distributor to sell, license or sublicense Exclusive Content to third parties worldwide and to collect and remit funds in connection with those endeavours on the terms set forth in this Agreement. For all Exclusive Content, you grant iStock:
The exclusive worldwide right to market and sublicense the right to copy, use, reproduce, distribute, redistribute, sublicense, publish, republish, upload, post, transmit, broadcast, crop, modify, alter, create derivative works of, package, repackage, produce and sell prints or similar image products, or publicly perform or display the Exclusive Content to prospective licensees in any and all media now in existence or that may in the future be introduced: (i) through the iStock Site; (ii) through other venues owned or operated by iStock or its affiliates from time to time, and(iii) through Distribution Partners (defined in Section 3(c)); and
The right to grant perpetual, worldwide, licenses or sublicenses to end-users. iStock and its Distribution Partners will determine the terms and conditions of all licenses of Content granted by them, but will not use or license Content for uses that are defamatory, pornographic or otherwise illegal.
In addition to the foregoing grant iStock and its Distribution Partners may post, reproduce, modify, display, make derivative works or otherwise use any Exclusive Content for their own business purposes relating to the promotion of the iStock Site, the Exclusive Content and their distribution programs, and promote the licensing of Exclusive Content (including, without limitation, the use of the Exclusive Content and your registered and unregistered trademarks for marketing, sales and promotional efforts whether on the iStock Site or through third parties). You agree that iStock shall have exclusive rights to design marketing literature for the Exclusive Content, at its own expense, and you agree to cooperate in that regard. No compensation shall be due to you for use of Exclusive Content for such business purposes.
Exclusive Content may be included in one or more current or future content collections (“Collections”) made available for licensing or distribution by iStock or third party distributors (each a “Distribution Partner”). Your Exclusive Content may be made available for licensing through a lower price tier royalty-free Collection of a Distribution Partner only if you opt in to the “Partner Program” category (as may be available from time to time) or other applicable indicator under your account profile. Unless otherwise provided for in the upload process, your Exclusive Content may be made available for licensing through a similar or higher price tier Collection of a Distribution Partner as may be determined by iStock from time to time upon notice to you either by posting notice on the Getty Images/iStock contributor website or otherwise. The price tier of a Collection shall be determined by iStock, acting reasonably, taking into consideration the average comparable pricing on the iStock Site. For all Exclusive Content that moves into another Collection, the Royalties (defined below) paid to you shall be as set out in the Rate Card (defined below). The price tier of a Collection shall be subject to promotions and varying discounts from time to time.
The Parties agree that all rights, including title and copyright, in and to the Exclusive Content will be retained by you, and no title or copyright is transferred or granted in any way to iStock or any third party except as provided in this Agreement.
iStock and its Distribution Partners may offer license models through an application program interface (API) or other utility that will make Exclusive Content available for use by clients on a high-volume basis. Accordingly, where appropriate, the amount due to you will be determined according to: (a) the ratio of the number of individual items of your Exclusive Content to the total number of individual items of content licensed together; or (b) in iStock’s discretion, the relative value of your individual items of Exclusive Content compared to all other content licensed together with it.
Intellectual Property Matters
You acknowledge that iStock prohibits any Exclusive Content, Descriptive Information or any other material that infringes on any patent, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded under this Agreement.
By uploading Exclusive Content, you are warranting that you own all proprietary rights or are the authorized representative of the applicable copyright owner(s) of such Content, including copyright, in and to the Exclusive Content with full power to grant the rights contemplated in this Agreement, and that you are not making any of the Exclusive Content available to or through any other distributor, website or other marketing, distribution, sale or licensing venue of any kind not specifically permitted herein. In addition, unless the Exclusive Content is identified as ‘for editorial use’ in the manner and form prescribed by iStock, to the extent that the Exclusive Content contains images of people or persons, you represent and warrant that you have obtained as part of the Descriptive Information a valid and binding model release from all required parties in substantially the same form as the model release found on the Getty Images/iStock contributor website that will permit the uses for such Exclusive Content contemplated in this Agreement and that you will keep the original release and provide a copy to iStock if requested. You also warrant that where required by applicable law, you have also obtained a valid and binding release in substantially the same form as the property release found on the Getty Images/iStock contributor website relating to identifiable property contained in the Exclusive Content that might sensibly lead to the identity of or be required by the owner of such property to permit the broad uses, including commercial use, of Accepted Content by iStock and its Distribution Partners’ customers. If your Exclusive Content was taken with an unmanned aerial vehicle (drone) or other unmanned device, you represent and warrant that you have adhered with all local laws and access requirements in the operation of the drone and capture of the Exclusive Content, including any necessary licenses, permissions and permits to own and operate such unmanned device. Where the Exclusive Content is identified as ‘for editorial use’ you represent and warrant that the Exclusive Content has not been manipulated, modified or processed in any manner that might distort the contextual integrity of the Exclusive Content. For greater clarity, cropping and brightness/contrast corrections are permissible where the integrity of the Exclusive Content has not been distorted.
You agree that neither iStock nor any of its directors, officers, employees, partners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Exclusive Content or Descriptive Information, or any error, omission or other matter relating to a model or property release respecting Exclusive Content or Descriptive Information.
Using the name identified by you in your contributor account profile, iStock shall use commercially reasonable efforts to credit you as the source of Exclusive Content, but shall have no liability for lack of credit. You acknowledge and accept and therefore waive any right to object to the fact that it is common business practice for commercial uses that the creator of Content is not credited, that Content may be modified, used in connection with sensitive topics and may be used or modified in ways that may be controversial or unflattering.
iStock agrees to pay you royalties (the “Royalties”) within 30 days after the end of each month in which the license or sale was made (except for royalties payable on subscription downloads, which shall be paid in the month following the end of the applicable subscription term, and when sales reporting is delayed, whether made by a Distribution Partner or otherwise, in which case payments will be made in the month following the date such sale is reported) (a “Sales Month”) by electronic funds transfer (as may be supported by iStock from time to time) or such other method as may be agreed by the parties. No payment will be made unless a minimum of $100USD, after Royalty Deductions (defined below), is due to you in accordance with the Rate Card posted on the Getty Images/iStock contributor website (the “Rate Card”). Within the same time period as payment of the Royalties set out in this Section, iStock shall provide a report of all licenses and Royalties related to such licenses of Exclusive Content during that Sales Month (the “Sales Report”). Royalties are paid on “License Fees” which are (a) the amount charged by iStock or a Distribution Partner to each of their Clients (or in the case of certain Distribution Partners, the amount charged by iStock to those Distribution Partners for royalty free licenses); or (b) the amount of revenue, including advertising revenue, that is allocated to the Accepted Content pursuant to Section 3(e). The parties acknowledge that the Rate Card may differ among various types of Content, such as Photo Content, Illustration Content and Video Content and among the iStock Sites/Distribution Partners through which the Content is distributed. The parties acknowledge that the Rate Card is subject to change in the sole discretion of iStock upon providing you 30 days' notice by e-mail as set out in Section 11(a). If at any time the Rate Card is not acceptable to you, you may terminate this Agreement in accordance with its terms. Continued submission of Content or failure to terminate this Agreement will be deemed acceptance by you of changes to the Rate Card, and the amended Rate Card will be incorporated by reference into this Agreement.
In all cases, the following deductions are made from License Fees before Royalties are calculated: any (i) applicable VAT, duty, levy or impost of any nature required to be withheld, deducted or paid by iStock from any current or future sums due to you by any law, regulation, or treaty (excluding: (A) any taxes on the net profits of iStock or any Distribution Partner; and (B) any withholding taxes imposed on remittances to iStock; (ii) unauthorized use detection/enforcement fees and expenses; (iii) currency hedging fees and costs; and (iv) shipping charges, insurance charges, fees for materials, and service fees such as, for example, special formatting requests, printing/framing costs and technology delivery/access services, distribution or fulfillment fees, and advertising sales commissions, in all cases arising out of or resulting from any license of the same Accepted Content.
iStock may deduct the following amounts from the Royalties payable to you (together the “Royalty Deductions”): (i) cancellations of a license where the original sale has been reported to you including where the cancellation is due to a fraudulent transaction; (ii) overpayment of Royalties in a prior Royalty period; and (iii) amounts that may be deducted or withheld in accordance with the Section 10 Indemnity.
iStock will use its best efforts to provide real time reporting of downloads of Exclusive Content from the iStock Site and gettyimages.com for your information. Please note that the official report of licenses of Exclusive Content and corresponding Royalties shall be the Sales Report.
Without limiting the generality of the foregoing, iStock is entitled to set-off against any amount owing to you, all amounts that iStock is or may be entitled under this Agreement or otherwise at law, including withholding amounts as security for any pending or threatened claim relating to any matter which is the subject of your representation, warranty or indemnity under this Agreement.
The parties further agree that iStock shall not be required to pay Royalties to you if iStock is restrained or otherwise prevented from using rights granted under this Agreement relating to Exclusive Content because those rights are found to be an infringement or contravention of the intellectual or other property rights of a third party, or if iStock discovers or determines in its reasonable discretion that the Exclusive Content provided by you appears for sale or license or give-away elsewhere in contravention of this Agreement.
In the event iStock facilitates a sale or exclusive license of Exclusive Content, iStock shall be entitled to deduct a reasonable administration fee relating to such sale or license, in addition to its share of the revenue relating to such sale or license, which share shall be based on the royalty payable pursuant to the Rate Card at the time of the transaction.
You acknowledge and agree that you will be responsible for each and every access or use of the iStock contributor enrollment website, Getty Images/iStock contributor site or any other upload website, tool or application that occurs in conjunction with your account and such passwords, and that iStock is authorized to accept your login and password as conclusive evidence that you wish to upload Exclusive Content pursuant to this Agreement. iStock shall have no liability or responsibility to monitor the provision of Exclusive Content under your login and password.
Managing Exclusive Content
iStock has policies and processes which must be adhered to prior to Content being offered for sale or license, and iStock agrees to give priority to the posting of Exclusive Content within the general constraints of its business. Notwithstanding that some qualitative standards are required to be met, iStock does not and cannot review all Exclusive Content or Descriptive Information uploaded to the iStock Site and is not responsible for the content, quality, or consequences of your uploading such Exclusive Content or Descriptive Information. Notwithstanding the foregoing, iStock reserves the right to delete, move, refuse to accept or edit any communication or Exclusive Content that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or is otherwise unacceptable in its discretion, and you hereby agree to forfeit any fees payable in respect of such Content to iStock or as it may direct. iStock shall have the right but not the obligation to correct any errors or omissions in any Exclusive Content or Descriptive Information, as it may determine in its sole discretion. You acknowledge that any screening of Exclusive Content or Descriptive Information performed by iStock to determine Accepted Exclusive Content is done as a courtesy only.
NOTICE: You acknowledge that the Exclusive Content you provide pursuant to this Agreement that becomes Accepted Exclusive Content may be purchased or licensed by members of the iStock Site or Distribution Partner sites with the intention that they will adhere to the terms of the applicable license agreement. Where iStock becomes aware of the breach of a license agreement by a user of Exclusive Content, it agrees that it will take initial steps in accordance with its usual business practices for the exclusivity program to request that the offending party refrain from its prohibited use of such Exclusive Content. iStock will use commercial efforts to further assist in the protection of your intellectual property rights, at your request and expense.
Notwithstanding the foregoing, given the exigencies of the stock photography business and the prevalence of royalty-free content, iStock cannot take responsibility for the compliance by purchasers and licensees of the terms of such agreements. Accordingly, you acknowledge and agree to the possibility of Exclusive Content being used in a manner that is not contemplated in this Agreement, and you agree that notwithstanding any rights you may have to pursue the licensees of such Exclusive Content at law, iStock shall have no liability to you or any person claiming through you for any breach by a licensee of the terms of any agreement respecting Accepted Exclusive Content.
You acknowledges that the Confidential Information (defined below) that it obtains through the entering into of this Agreement and the provision of Exclusive Content constitutes valuable, confidential, proprietary information of iStock and its licensors, and agrees that during the term of this Agreement and thereafter it shall not, without the express written consent of iStock, use or disclose to any other person any such Confidential Information, except as specifically authorized under this Agreement.
For the purposes of this Agreement, "Confidential Information" means any and all data, information, documents, software or materials relating to the business and management of iStock, its members, affiliates, licensors or licensees, that is designated as confidential or ought reasonably to be considered confidential, including but not limited to: their business model and operations, processes, products, designs, pricing, promotions, business plans, business opportunities, alliances, Content, graphics, documentation, finances, research, development, know-how, trade-secrets, training materials, personnel, identities or personal information of any kind pertaining to members, clients, methodologies, iStock Site and gettyimages.com content belonging to others and other intellectual property.
Representations and Warranties
You hereby represent and warrant as follows:
You have the legal capacity and authority to enter into this Agreement and perform your obligations hereunder and that you will comply with all applicable laws, including without limitation the Foreign Corrupt Practices Act and the U.K. Bribery Act, are not on the US Department of Treasury's List of Specially Designated Nationals, are the sole and exclusive owner of the Exclusive Content or are the authorized representative of the applicable copyright owner(s) of such Content, have the right to grant all of the license rights contemplated to be provided under this Agreement, and have not granted any rights or licenses to any Exclusive Content or any other intellectual property or technology that would conflict with this Agreement;
if the Exclusive Content consists in whole or in part of design elements that are included in design program software, the end user license agreement, terms of service or the equivalent license held by you for such design program software allows you to incorporate such elements in Exclusive Content created by you, and to license such Exclusive Content to iStock for the purposes set forth herein;
no portion of the Content as delivered to iStock from time to time, contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement, and all Content will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the iStock Site or the Content or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Content or the iStock Site in any way;
the Content will include all necessary Descriptive Information to enable its effective marketing on the iStock Site, which Descriptive Information will be complete and accurate in all material respects, and will not include false, misleading or inapplicable metadata intended to or which has the effect of keyword “doping” or improperly altering search results that would otherwise be applicable to such Content;
the Content delivered to iStock hereunder represents original creations and expressions of subject matter, and no Content or Descriptive Information infringes any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party, or defames or casts into disrepute in any manner any third party; and
the Content has not been obtained in any unlawful manner, whether civil or criminal, and is not subject to any applicable accreditation terms or access condition that might be breached by the Content being used by iStock, its customers or Distribution Partners as contemplated under this Agreement.
You represent and warrant that you shall not: (i) license your own Exclusive Content (except occasionally and then only for legitimate creative purposes); or (ii) predominately license the content of only a few contributors. You agree that you will not collude with another iStock member to have that member do either of (i) or (ii) above for your benefit. You acknowledge that genuine subscription customers typically license files from many contributors and you agree that your subscription licensing behavior will conform to this typical conduct. In addition to any other available remedies, if you breach this paragraph iStock may immediately terminate this Agreement and/or, if applicable, cancel your subscription package without any refund to you. You further agree to forfeit any royalties earned by you in connection with your misconduct.
You agree to indemnify, defend and hold iStock and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Exclusive Content (collectively, the “iStock Parties”) harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any iStock Party as a result of or in connection with: (i) any use or alleged use of the iStock Site or upload application or process or provision of Content under your account by any person, whether or not authorized by you; (ii) or resulting from any communication made or Content uploaded under your account; (iii) any breach by you of this Agreement; or (iv) any claim threatened or asserted against any iStock Party to the extent such claim is based upon a contention that any of the Exclusive Content used within the scope of this Agreement infringes any copyrights, trade secrets, trademarks, right of privacy, right of publicity or other intellectual or other property rights of any third party.
iStock reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with iStock's defense of such claim.
You agree that iStock shall have the right to determine whether and to what extent to proceed against a licensee or other third party (an “Infringer”) for any violation of a license agreement or alleged infringement of any other of your rights. You hereby release iStock from any and all claims you might have, either directly or indirectly, arising out of or in connection with a determination by iStock to proceed or not to proceed against any Infringer in any instance. iStock hereby agrees that any monetary recovery it receives as a result of any legal or enforcement action taken against any such Infringer, to the extent such monies are intended to compensate iStock for lost licensing fees or statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery ( including, without limitation, reasonable counsel and experts' fees and disbursements on a solicitor and client basis) incurred by or on behalf of iStock in connection with such action, be divided between you and iStock pursuant to the provisions of Section 5 (Compensation). In the event iStock elects not to proceed against an Infringer, you shall have the right to proceed against such Infringer for such license violation or infringing action. You hereby agree that any monetary recovery it receives as a result of any legal action taken against any such Infringer, to the extent such monies are intended to compensate you for lost licensing fees or include statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable counsel and experts' fees and disbursements on a solicitor and client basis), be divided between you and iStock pursuant to the provisions of Section 5 (Compensation section) above.
Term and Termination
This Agreement is effective until terminated. You may terminate this Agreement with respect to the whole (but not part of) one or more of Photo Content, Illustration Content or Video Content at any time by giving thirty (30) days written notice specifying the category or categories of Exclusive Content to which termination applies to iStock by filing a ticket through your account profile or such other means of written notice acceptable to iStock which enables confirmation of your identity and your intention to terminate. iStock may also terminate this Agreement with respect to one or more of Photo Content, Illustration Content or Video Content, for any reason by giving you thirty (30) days notice by e-mail at the last address contained in your membership information. Where this Agreement is terminated by iStock, unless otherwise indicated by iStock at the time of termination, you shall be deemed to have agreed to the Artist Supply Agreement (Non-Exclusive) and your Accepted Exclusive Content shall be deemed to be Accepted Content (as defined in the Artist Supply Agreement (Non-Exclusive)) unless you advise iStock in writing within thirty (30) days of iStock’s notice of termination of this Agreement. If iStock terminates your membership pursuant to the terms of the Membership Agreement, such termination shall be deemed to be notice of termination of this Agreement with respect to all Content, as well.
Either party may terminate this Agreement upon written notice effective upon being sent in the manner set forth in Section 11(a), if the other party (i) liquidates all or substantially all of its assets, dissolves as a corporation other than through inadvertence, or otherwise ceases to do business in a material way, or (ii) makes an assignment for the benefit of creditors, or (iii) files a petition in bankruptcy, petitions or applies for a receiver or trustee for all or any substantial part of its property and such receiver or trustee is appointed, or commences, or has commenced against it, a proceeding under any bankruptcy, reorganization, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, any of which shall remain in force for a period of thirty (30) days or more, or (iv) is adjudicated insolvent or bankrupt, or (v) is in breach of this Agreement.
In addition, iStock may deem an account to be terminated and may off-set any fees or credits contained in such account against its costs of administration if there has been: (i) in the reasonable opinion of iStock, any material misrepresentation made as to the capacity, identity or copyright ownership of Content or you provided hereunder; or (ii) no log-in or other activity in the account for 24 months despite reasonable commercial efforts to contact you based on the information provided as part of your account profile.
Effect of Termination
Upon the termination of this Agreement with respect to one or more of Photo Content, Illustration Content or Video Content, except where the Artist Supply Agreement (Non-Exclusive) governs the Content, the grant of authority given to iStock shall cease with respect to the relevant category of Content subject to the following conditions: (i) iStock shall remove the applicable Accepted Exclusive Content from the iStock Site and distribution partners within ninety (90) days of the termination of this Agreement; (ii) notwithstanding termination, iStock and its distribution partners shall have the right to continue licensing Accepted Exclusive Content until it is removed from the iStock Site or other sites where Accepted Exclusive Content is distributed and for up to (1) year following termination where such Accepted Content has previously appeared in iStock's promotional materials, or Distribution Partner marketing programs; (iii) regardless of the expiration or termination of this Agreement, iStock will continue, in accordance with this Agreement, to pay compensation due to you at the applicable non-exclusive royalty rate set out in the Rate Card in respect of licenses granted to members during any transitional period, subject to any rights of set-off under this Agreement or at law; and (iv) where a customer reports a license of your Exclusive Content that was delivered to the customer prior to the termination of this Agreement, iStock shall pay such applicable royalties to you within 60 days of reporting of a license by the customer.
Upon termination, iStock will be entitled to retain all amounts owing to you for a period of thirty (30) days to determine any applicable rights of set-off, and shall be entitled to deduct from such amounts, a reasonable administrative fee for establishing, managing and terminating your account.
Notwithstanding any other provision in this Agreement, the termination or expiration of this Agreement with respect to one category of Content shall not alter or reduce your obligations and iStock respecting any remaining category of Content, and in any event, shall not alter or affect the rights granted to licensees or sub-licensees by iStock pursuant to this Agreement.
In the event you terminate this Agreement with respect to any or all of Photo Content, Illustration Content or Video Content, and subsequently wishes to re-enter the exclusivity program and provide Exclusive Content, you may re-apply with respect to that category of Content ninety (90) days after the termination date of the original Artist's Supply Agreement (Exclusive) relating to such category of Content.
DISCLAIMER OF WARRANTIES
THE ISTOCK SITE, INCLUDING ANY CONTENT CONTAINED THEREIN, ARE PROVIDED BY ISTOCK "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. ISTOCK DOES NOT REPRESENT OR WARRANT THAT THE ISTOCK SITE OR THE CONTENT WILL BE MADE AVAILABLE FOR SALE OR LICENSE OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE.
ISTOCK DOES NOT REPRESENT OR WARRANT THAT THE ISTOCK SITE OR ANY CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE ISTOCK SITE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
LIMITATION OF LIABILITY
YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE ISTOCK SITE INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN.
IN NO EVENT SHALL ISTOCK OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE ISTOCK SITE, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF ISTOCK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
IN ANY EVENT, ISTOCK'S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE ISTOCK SITE OR THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED BY ISTOCK FOR THE EXCLUSIVE CONTENT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED ONE THOUSAND ($1,000.00) UNITED STATES DOLLARS.
SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF ISTOCK OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
This Agreement will be governed in all respects by the laws of the State of New York, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from or related to this Agreement or its enforceability, or the business relationship between the parties, shall be finally settled by binding, confidential arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under JAMS’ Expedited Procedures in its Comprehensive Arbitration Rules and Procedures (“JAMS”) or of the International Center for Dispute Resolution ("ICDR") in effect on the date of the commencement of the arbitration (the applicable rules to be at your discretion) to be held in one of the following jurisdictions (whichever is closest to you): Seattle, Washington; New York, New York; Los Angeles, California; London, England; Paris, France; Frankfurt, Germany; Tokyo, Japan; or Singapore. The arbitration proceedings shall be conducted in English and all documentation shall be presented and filed in English. The decision of the arbitrator shall be final and binding on the parties, and judgment may be entered on the arbitration award and enforced by any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, iStock shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in the opinion of iStock, such action is necessary or desirable. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any proceeding within the scope of this paragraph shall be commenced within two years of the acts, events, or occurrences giving rise to the claim.
You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you as set out in section 11(a). You agree to waive any right you may have to (i) trial by jury; and (ii) to commence or participate in any class action against iStock related to the iStock Site, this Agreement or any agreements contemplated hereby.
If iStock is obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, you agree to reimburse iStock for its legal fees, costs and disbursements if iStock is successful.
iStock'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.
This Agreement is personal to you and is binding upon your heirs, executors and legal representatives, as the case may be, and is not assignable by you without iStock's prior written consent. iStock may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
This Agreement can be amended by the written agreement of the parties or by iStock providing you 30 days' notice by e-mail at the address set out in section 11(a) and posting amendments on the Getty Images/iStock contributor website. Continued provision of Exclusive Content or failure to terminate this Agreement within 30 days of such notice will be deemed to be acceptance of the amendment by you and it will be incorporated by reference into this Agreement.
If and to the extent you are submitting Content to iStock as an authorized representative of the applicable copyright owner(s), you acknowledge and agree that (a) you will ensure that such copyright owner(s) comply with the terms of this Agreement where necessary; and (b) to the extent Royalties are paid to you in such capacity, you will be solely responsible for compensating the copyright owner(s) where applicable.
If you have concerns relating to this Agreement, please file a ticket through the iStock contributor site.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF ISTOCK AGREEING TO PROVIDE A MEANS FOR THE SALE OR LICENSE OF YOUR EXCLUSIVE 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 ISTOCK, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND ISTOCK RELATING TO THE SUBJECT OF THIS AGREEMENT.