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CONTENT LICENSE AGREEMENT
This Agreement governs the terms by which members and clients of Gallery AlSharq®
obtain the right to use stock photographic, illustrations, animations, video, footage,
and other media content provided by members of the GalleryAlSharq.com community
through the web site located at www.GalleryAlSharq.com (the “Site”). This Content
License Agreement is in addition to the Terms of Use applicable to the Site and
to the Membership Agreement that all persons providing content to or downloading
content from the Site have previously entered into. In the event of any inconsistency
between this Agreement, the Membership Agreement and the Terms of Use (both of which
are incorporated into this Agreement by reference), the terms of this Agreement
shall govern.
1. Background of Agreement
(a) This is a fairly lengthy document, and it contains many important provisions
that affect your rights and obligations. By selecting the correct box at the end
of this Agreement and typing “I Agree” or otherwise signifying your acceptance,
you accept this Agreement either for yourself or on behalf of your employer or the
entity that is identified as the member account holder, and agree to be bound by
its provisions. If you are accepting on behalf of your employer or the entity that
is the member account holder, you represent and warrant that you have full legal
authority to bind your employer or such other entity. If you do not have such authority
or you do not accept or agree with these terms, do not accept the Agreement and
do not download the Content.
(b) In this Agreement: (i) “you” or the “Client” means you or, if you are accepting
on behalf of your employer or member account entity, then “you” means that employer
or entity and affiliates; (ii) “GalleryAlSharq” or “we” means GalleryAlSharq LCC,
operator of the Site; and (iii) “Content” means any photographic image, illustration,
animation, Flash file, film or video footage, visual representation generated optically,
electronically, digitally or by any other means or in any media or other material
that you are downloading from the Site, together with any accompanying material.
(c) This Agreement is set up as a user-determined document where you will choose
to enter into either our standard royalty-free content license (the “Standard License”)
or an extended license where one or more of the restrictions of the Standard License
are amended for your proposed use of the Content (an “Extended License”). At the
end of this Agreement you will have the opportunity to select a “Standard License”
or an “Extended License”. The options for the Extended License uses are dependent
upon the Content and whether the supplier of the Content has opted-in to the extended
license options. If you do not specify an Extended License or there is no Extended
License option for the Content you have requested, your download of Content will
be subject to the Standard License.
2. Standard License Terms We hereby grant to you a perpetual, non-exclusive, non-transferable
worldwide license to use the Content for the Permitted Uses (as defined below).
Unless the activity or use is a Permitted Use, you cannot do it. All other rights
in and to the Content, including, without limitation, all copyright and other intellectual
property rights relating to the Content, are retained by Gallery AlSharq or the
supplier of the Content, as the case may be.
3. Permitted Standard License Uses (a) You may only use the Content for those advertising,
promotional and other specified purposes which are Permitted Uses (as defined below).
For clarity, you may not use the Content in products for resale, license or other
distribution, unless (i) the proposed use is allowable under an Extended License
which is available for the Content; or (ii) if the original Content has been fundamentally
modified or transformed sufficiently that it constitutes an original work entitling
the author or artist to copyright protection under applicable law, and where the
primary value of such transformed or derivative work is not recognizable as the
Content nor is the Content capable of being downloaded, extracted or accessed by
a third party as a stand-alone file (satisfaction of these conditions will constitute
the work as a “Permitted Derivative Work” for the purposes of this Agreement). For
example, you cannot superficially modify the Content, print it on a t-shirt, mug,
poster, template or other item, and sell it to others for consumption, reproduction
or re-sale. These uses will not be permitted as or constitute Permitted Derivative
Works. If there is any doubt that a work is a Permitted Derivative Work, you should
either obtain an Extended License or contact Gallery AlSharq’s Client Relations
for guidance. Any use of the Content that is not a Permitted Use shall constitute
infringement of copyright.
(b) Seat Restrictions. Only you are permitted to use the Content, although you may
transfer files containing Content or Permitted Derivative Works to your clients,
printers, or ISP for the purpose of reproduction for Permitted Uses, provided that
such parties shall have no further or additional rights to use the Content and cannot
access or extract it from any file you provide. You may install and use the Content
in only one location at a time, although subject to the Prohibited Uses and the
other terms of this Agreement, you are entitled to utilize the Permitted Uses an
unlimited number of times. You may physically transfer the Content and its archives
from one location to another, in which case you may use the Content at the new location
instead. If you require the Content to be in more than one location or accessible
by more than one person, you must download the Content from the Site for each such
use or obtain an Extended License for a multi-seat license for the Content. You
may make one (1) copy of the Content solely for back-up purposes, and you must reproduce
all proprietary notices on this single back-up copy.
(c) Permitted Uses. Subject to the restrictions described under Prohibited Uses
below, the following are “Permitted Uses” of Content:
advertising and promotional projects, including printed materials, product packaging,
presentations, film and video presentations, commercials, catalogues, brochures,
promotional greeting cards and promotional postcards (ie. not for resale or license);
entertainment applications, such as books and book covers, magazines, newspapers,
editorials, newsletters, and video, broadcast and theatrical presentations; on–line
or electronic publications, including web pages to a maximum of 1200 x 800 pixels
for image or illustration Content or to a maximum of 640x480 for video Content;
prints, posters (i.e. a hardcopy) and other reproductions for personal use or promotional
purposes specified in (1) above, but not for resale, license or other distribution;
and any other uses approved in writing by Gallery AlSharq. If there is any doubt
that a proposed use is a Permitted Use, you should contact Gallery AlSharq’s Client
Relations for guidance.
4. Standard License Prohibitions
(a) Prohibited Uses. You may not do anything with the Content that is not expressly
permitted in the preceding section or permitted by an Extended License. For greater
certainty, the following are “Prohibited Uses” and you may not:
use the Content in design template applications intended for resale, whether on-line
or not, including, without limitation, website templates, Flash templates, business
card templates, electronic greeting card templates, and brochure design templates;
use or display the Content on websites or other venues designed to induce or involving
the sale, license or other distribution of “on demand” products, including postcards,
mugs, t-shirts, posters and other items (this includes custom designed websites,
as well as sites such as www.cafepress.com);
use the Content in any posters (printed on paper, canvas or any other media) or
other items for resale, license or other distribution for profit; use any of the
Content as part of a trade-mark, design-mark, trade-name, business name, service
mark, or logo; incorporate the Content in any product that results in a re-distribution
or re-use of the Content (such as electronic greeting card web sites, web templates
and the like) or is otherwise made available in a manner such that a person can
extract or access or reproduce the Content as an electronic file; use the Content
in a fashion that is considered by Gallery AlSharq (acting reasonably) as or under
applicable law is considered pornographic, obscene, immoral, infringing, defamatory
or libelous in nature, or that would be reasonably likely to bring any person or
property reflected in the Content into disrepute; use or display any Content that
features a model or person in a manner (a) that would lead a reasonable person to
think that such person uses or personally endorses any business, product, service,
cause, association or other endeavor; or (b) except where accompanied by a statement
that indicates that the Content is being used for illustrative purposes only and
any person depicted in the Content is a model, that depicts such person in a potentially
sensitive subject matter, including, but not limited to mental and physical health
issues, social issues, sexual or implied sexual activity or preferences, substance
abuse, crime, physical or mental abuse or ailments, or any other subject matter
that would be reasonably likely to be offensive or unflattering to any person reflected
in the Content, unless the Content itself clearly and undisputedly reflects the
model or person in such potentially sensitive subject matter in which case the Content
may be used or displayed in a manner that portrays the model or person in the same
context and to the same degree depicted in the Content itself; to the extent that
source code is contained within the Content, reverse engineer, decompile, or disassemble
any part of such source code; remove any notice of copyright, trade-mark or other
proprietary right from any place where it is on or embedded in the Content; sub-license,
re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Content
or the rights granted under this Agreement; install and use the Content in more
than one location at a time or post a copy of the Content on a network server or
web server for use by other users; use or display the Content in an electronic format
that enables it to be downloaded or distributed via mobile devices or shared in
any peer-to-peer or similar file sharing arrangement; use Content identified as
“Editorial Use Only”, for any commercial, promotional, endorsement, advertising
or merchandising use. For clarification, in this Agreement “Editorial Use Only”
of Content means use relating to events that are newsworthy or of general interest
and expressly excludes any advertorial sections (i.e. sections or supplements featuring
brand and/or product names or sections or supplements in relation to which you receive
a fee from a third-party advertiser or sponsor); use the Content for editorial purposes
without including the following credit adjacent to the Content or in audio/visual
production credits: “©GalleryAlSharq.com/Artist’s Member Name]; or either individually
or in combination with others, reproduce the Content, or an element of the Content,
in excess of 500,000 times without obtaining an Extended License, in which event
you shall be required to pay an additional royalty fee equal to US $0.01 for each
reproduction which is in excess of 500,000 reproductions. This additional royalty
does not apply to advertisements in websites or to broadcast by television, web-cast
or theatrical production.
5. Excess Reproduction Run
In the event you contravene subparagraph 4(a)(xv) above without purchasing an Extended
License, you further agree to notify Gallery AlSharq in the event that you (or a
combination of you and others involved with you) reproduce the Content, or an element
of the Content in excess of 500,000 times. Such disclosure notice must be sent to
Gallery AlSharq each and every month after which the Content, or an element of the
Content, has been reproduced in aggregate over the term of this Agreement in excess
of 500,000 times. Each such notice must contain the number of reproductions made
in any particular month; provided however the first such notice will only be require
disclosure of those reproductions which are in excess of 500,000. Gallery AlSharq
shall invoice you for the fees associated with such excess use and you agree to
pay such invoice within 30 days of receipt.
6. Term of Agreement
(a) This Agreement is effective until it is terminated. You can terminate this Agreement
by destroying the Content and any Permitted Derivative Works, along with any copies
or archives of it or accompanying materials (if applicable), and ceasing to use
the Content for any purpose. The Agreement also terminates without notice from Gallery
AlSharq if at any time you fail to comply with any of its terms. Upon termination,
you must immediately (i) cease using the Content and for any purpose; (ii) destroy
or delete all copies and archives of the Content or accompanying materials; and
(iii) if requested, confirm to Gallery AlSharq in writing that you have complied
with these requirements.
(b) Gallery AlSharq reserves the right to elect at a later date to revoke or amend
the license granted by this Agreement and replace the Content with an alternative
for any reason. Upon notice, sent to the address or contact information provided
by you for your member account, or such other address as you may advise us in writing
to use, from time to time, of such replacement, the license for the replaced Content
immediately terminates for any products that do not already exist, and this license
automatically applies to the replacement Content. You agree not to use the replaced
Content, or any Permitted Derivative Works, for future products and to take all
reasonable steps to discontinue use of the replaced Content, or any Permitted Derivative
Works, in products that already exist.
(c) Upon notice from Gallery AlSharq, or upon your knowledge that any Content is
subject to a threatened, potential or actual claim of infringement of another's
right for which Gallery AlSharq may be liable, you must immediately and at your
own expense (i) stop using the Content; (ii) delete or remove the Content from your
premises, computer systems and storage (electronic or physical); and (iii) ensure
that your clients, printers or ISPs do likewise. Gallery AlSharq shall provide you
with replacement Content (which shall be determined by Gallery AlSharq in its reasonable
commercial judgment) free of charge, but subject to the other terms and conditions
of this Agreement.
7. Gallery AlSharq Representations and Warranties
(a) Gallery AlSharq warrants that, except in respect of Content identified as “Editorial
Use Only”,: (i) your use of the Content in accordance with this Agreement and in
the form delivered by Gallery AlSharq will not infringe on any copyright, moral
right, trademark or other intellectual property right and will not violate any right
of privacy or right of publicity; and (ii) all necessary model and/or property releases
for use of the Content in the manner authorized under this Agreement have been obtained.
You acknowledge that no releases are generally obtained for Content that is identified
as “Editorial Use Only” and that some jurisdictions provide legal protection against
a person's image, likeness or property being used for commercial purposes when they
have not provided a release. For Content identified as “Editorial Use Only”, Gallery
AlSharq does not grant any right nor make any warranty with regard to the use of
names, people, trademarks, trade dress, logos, registered, designs or works of art
or architecture depicted therein. In such cases, you shall be solely responsible
for determining whether release(s) is/are required in connection with any proposed
use of the Content identified as “Editorial Use Only”, and shall be responsible
for obtaining such release(s).
(b) While we have made reasonable efforts to correctly categorize, keyword, caption
and title the Content, Gallery AlSharq does not warrant the accuracy of such information.
Additionally, Gallery AlSharq does not warrant the accuracy of any metadata that
may be provided with the Content.
(c) OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 7(a), THE CONTENT IS PROVIDED “AS
IS” WITHOUT REPESENTATION, 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. GALLERYALSHARQ
DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT
ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND
PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE, YOU
(AND NOT GALLERYALSHARQ) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.
IN PARTICULAR AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IF YOU ARE DOWNLOADING
CONTENT THAT IS IN A FLASH FORMAT OR FILE (WHETHER .SWF OR OTHERWISE), EXCEPT AS
EXPRESSLY PROVIDED IN SECTION 7(a),GALLERYALSHARQ MAKES NO REPRESENTATION OR WARRANTY
RESPECTING SUCH CONTENT WHATSOEVER, WHETHER AS TO OWNERSHIP, TECHNICAL OR LEGAL
COMPLIANCE, OR OTHERWISE.
(d) Certain jurisdictions do not allow the exclusion of implied warranties, so the
above exclusion may not apply to you. You have specific rights under this warranty,
but you may have others, which vary from jurisdiction to jurisdiction.
8. Gallery AlSharq Indemnification and Limitation of Liability
(a) Provided that the Content is only used in accordance with this Agreement and
you are not otherwise in breach of this Agreement and as your sole and exclusive
remedy for breach of the representations and warranties set forth in Section 7 (a)
above, Gallery AlSharq shall, subject to the terms of Sections 8(b),(c),(d) and
(e) defend, indemnify and hold harmless you, your parent, subsidiaries and affiliates
and respective directors, officers and employees from all damages, liabilities and
expenses (including reasonable outside legal fees), arising out of or connected
with any actual or threatened lawsuit, claim or legal proceeding alleging that the
possession, distribution or use of the Content by you is in breach of the representations
and warranties set forth in Section 7(a) above. The foregoing states Gallery AlSharq’s
entire indemnification obligation under this Agreement.
(b) The indemnification set out in Section 8(a) above is conditioned on your prompt
notification in writing to Gallery AlSharq of such claim and our right to assume
the handling, settlement or defense of any claim or litigation. You agree to cooperate
with Gallery AlSharq in the defense of any such claim or litigation and shall have
the right to participate in such litigation at your sole expense. Gallery AlSharq
shall not be liable for legal fees and other costs incurred prior to the notice
of the claim.
(c) IN NO EVENT SHALL GALLERYALSHARQ OR ANY OF ITS AFFILIATES OR CONTENT PROVIDERS
OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS OR AGENTS
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 YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE
CONTENT, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE
HAVE 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. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THIS
AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF YOU MORE THAN TWO (2) YEARS AFTER THE
CAUSE OF ACTION FIRST AROSE.
(d) NOTWITHSTANDING ANY OTHER TERM HEREIN, GALLERYALSHARQ SHALL NOT BE LIABLE FOR
ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFCATIONS MADE TO THE CONTENT
BY YOU OR THE CONTEXT IN WHICH THE CONTENT IS USED BY YOU.
(e) NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE
LIABILITY OF GALLERYALSHARQ UNDER THIS AGREEMENT AND ANY OTHER AGREEMENT UNDER WHICH
YOU HAVE LICENSED THE SAME CONTENT, REGARDLESS OF THE FILE SIZE, OR THE USE OR EXPLOITATION
OF ANY OR ALL OF THE CONTENT IN ANY MANNER WHATSOEVER AND THE OBLIGATION OF GALLERYALSHARQ
UNDER SECTION 8(a) SHALL BE LIMITED TO AN AGGREGATE OF TEN THOUSAND ($10,000) US
DOLLARS. FOR GREATER CLARITY, GALLERYALSHARQ’S LIABILITY TO YOU IN RESPECT OF THE
CONTENT SHALL NOT EXCEED TEN THOUSAND ($10,000) US DOLLARS REGARDLESS OF THE NUMBER
OF TIMES THAT YOU LICENSE THE SAME CONTENT FROM GALLERYALSHARQ.
(f) 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.
9. Your Indemnification
You agree to indemnify, defend and hold Gallery AlSharq, its affiliates, its Content
providers and their respective directors, officers, employees, shareholders, partners
and agents (collectively, the “Gallery AlSharq Parties”) harmless from and against
any and all claims, liability, losses, damages, costs and expenses (including reasonable
legal fees on a solicitor and client basis) incurred by any Gallery AlSharq Party
as a result of or in connection with any breach or alleged breach by you or anyone
acting on your behalf of any of the terms of this Agreement.
10. General Provisions
(a) You specifically agree and acknowledge that you have, in addition to the terms
of this Agreement, reviewed the terms of the Membership Agreement and Terms of Use
and any other agreements which may be incorporated by reference therein, and to
the extent of their incorporation in this Agreement you agree to be bound by them.
(b) Gallery AlSharq’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.
(c) This Agreement is personal to you and is not assignable by you without Gallery
AlSharq’s prior written consent. Gallery AlSharq may assign this Agreement without
your consent to any other party so long as such party agrees to be bound by its
terms.
(d) 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.
(e) You agree to pay and be responsible for any and all sales taxes, use taxes,
value added taxes and duties imposed by any jurisdiction as a result of the license
granted to you, or of your use of the Content, pursuant to this Agreement.
(f) This Agreement will be governed under the laws of the Province of Alberta and
the federal laws of Canada applicable therein (without reference to conflicts of
laws principles). This Agreement will not be governed by the United Nations Convention
on Contracts for the International Sale of Goods, the application of which is expressly
excluded. 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 at the time the Content was downloaded, or
such other address as you may advise us in writing to use, from time to time.
(g) Any and all disputes arising out of, under or in connection with this Agreement,
including without limitation, its validity, interpretation, performance and breach,
shall be finally settled under the Rules of Arbitration of the International Chamber
of Commerce by a single Arbitrator appointed in accordance with such rules. The
arbitration shall take place in Calgary, Alberta, and shall be conducted in the
English language.
11. Contact
If you have concerns relating to this Agreement, please contact Gallery AlSharq
at info@galleryalsharq.com or via phone at +962 79 6234511
12. Acknowledgement
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 GALLERYALSHARQ
AGREEING TO PROVIDE THE 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 GALLERYALSHARQ, WHICH SUPERSEDES ANY PROPOSAL OR
PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND GALLERYALSHARQ
RELATING TO THE SUBJECT OF THIS AGREEMENT.
© Gallery AlSharq LCC 2012. All rights reserved.
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