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Photography License Agreement
In consideration of CommunicateHealth agreeing to provide a means for the sale or license of certain of your photographs as provided herein, you agree to be bound by the terms and conditions of this Agreement as follows:
- Purpose and Scope. This is a legal agreement between you and CommunicateHealth. It provides the terms by which you may provide photographs to CommunicateHealth using such procedures as CommunicateHealth may from time to time provide (such photographs you provide hereinafter are referred to as “Art Work”). By entering into this Agreement, you are appointing CommunicateHealth as your non-exclusive agent to license, sublicense and distribute Art Work on the terms and conditions of this Agreement. Each upload of Art Work to the Site will be governed by this Agreement.
- Significance. This Agreement affects your rights and obligations. By clicking the “I agree” box at the end of this Agreement, you are agreeing to be bound by its terms and conditions. You should print a copy of the Agreement for your records.
- Age Limitation. You must be at least 18 years old to enter into this Agreement.
- Duration. This Agreement remains in full force and effect until terminated in accordance with its terms by either you or CommunicateHealth. 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 “Termination.”
- Discretion to Accept Photographs: Accepted Art Work. CommunicateHealth, in its sole discretion, will determine which of the Art Work is suitable for posting on the Site or other means of distribution (“Accepted Art Work”).
- Grant of License and Agency Authority
- Grant of Agency Authority. You hereby appoint CommunicateHealth as your non-exclusive distributor to sell, license, or sublicense Art Work to third parties worldwide and to collect and remit funds in connection with those endeavors on the terms set forth in this Agreement.
- Grant of License. For all Art Work, you grant CommunicateHealth:
- the worldwide right, including the right to sublicense the right, to market, copy, use, reproduce, distribute, redistribute, further sublicense, publish, republish, upload, post, transmit, broadcast, crop, modify, alter, create derivative works of, package, repackage, produce and sell prints or similar image products and to publicly perform or display (all such activities, collectively, “Perform”) Art Work in any and all media now or may in the future be in existence or that may in the future be introduced: (i) through the Site; or (ii) through other venues owned or operated by CommunicateHealth or its affiliates from time to time; and
- the right to grant perpetual, worldwide and non-exclusive licenses or sublicenses to end-users. You agree that CommunicateHealth will determine the terms and conditions of all licenses and sublicenses of Art Work that it grants.
- Use of Art Work for Other Business Purposes. In addition to the foregoing grant, CommunicateHealth and its affiliated entities may post, reproduce, modify, display, make derivative works or otherwise use any Accepted Art Work, including any associated trademarks, for its own business purposes relating to the promotion of the Site, the Art Work, and distribution programs, and to promote the licensing of Accepted Art Work, whether on the Site or through third parties. No compensation shall be due to you for use of Art Work for such business purposes.
- Retention of Copyright. You will retain copyright in and to the uploaded Art Work.
- Your Rights to Art Work
- Exclusive Rights to Art Work. By uploading Art Work, you are representing and warranting that:
- you own or have full and exclusive rights to all intellectual property and other proprietary rights, including copyright, in and to the Art Work with full power to grant the rights contemplated in this Agreement;
- the Art Work represents original creations and expressions of subject matter, and no Art Work or associated descriptive information infringes any copyright, trademark, right of privacy or right of publicity or other proprietary right of any third party; and
- the Art Work has not been obtained in any unlawful manner, whether civil or criminal; and
- Rights to Use Images of Individuals. To the extent that the Art Work contains images of one or more persons, you represent and warrant that you have obtained a valid and binding release from each such person, substantially of the form of CommunicateHealth’s Model Release Form, a copy of which you can download here. We strongly encourage you to use the Model Release Form. You may use your own form if it provides substantially the same license and releases as provided by the Model Release Form; specifically including (1) an unconditional grant of the right, to you and to all others that you choose at any time, to modify, substantially alter, and/or use the individual’s image captured in the photograph(s) for any purpose; (2) a release by each such person from any and all damages and liability that may arise or be asserted because of such use; (3) an agreement that you may transfer the grant and release to any other parties of your choosing; and (4) the signature of each identifiable individual within the photograph(s) or, if any such individual is under the age of eighteen (18) years, the signature of that individual’s legal guardian, verifying such grant, release, and agreement. With each photograph you submit to picturepublichealth.com or in any other manner to CommunicateHealth, you must include a signed model release for each identifiable individual, if any, included within the photograph. CommunicateHealth shall have the right, but not the duty, to reject any model release and associated photograph(s) if, in its sole discretion, it deems the release to be inadequate.
- Rights to Use Images of Property. You represent and warrant that you have obtained a valid and binding release relating to any identifiable property contained in the Art Work that might be required by the owner of such property to permit the broad uses, including commercial use, of such images by CommunicateHealth and its customers without liability to such owner. You further agree that you will keep the original of such release(s) and will provide copies thereof to CommunicateHealth if so requested.
- Prohibited Works. You will not upload any Art Work or any other material that infringes on any patent, trademark, copyright, trade secret, right to privacy, or right to publicity, or otherwise infringes or violates any other applicable law or proprietary right.
- Non-defamation. By uploading Art Work, you are further representing and warranting that the Art Work and related information does not defame or cast into disrepute any third party.
- Waiver of Credits and Objections to Use of Art Work
- Credit. CommunicateHealth shall use commercially reasonable efforts to credit you as the source of Accepted Art Work. You acknowledge and agree, however, that consistent with common business practice CommunicateHealth may not credit you in the context of certain uses of your Art Work. In no event will CommunicateHealth be liable for not providing credit to you for any Art Work.
- Modification and Use of Art Work. You further acknowledge and agree that, consistent with common business practice with respect to commercial use of visual works, Art Work may be modified, may be used in connection with sensitive topics, and may be used or modified in ways that may be deemed controversial or unflattering by you or others.
- Rate Schedule. CommunicateHealth agrees to pay you fees and/or royalties according to the Rate Schedule shown on the Submission & Payment Process page, which you may view here and is incorporated by reference into this Agreement. The Rate Schedule shown on the Payment Plans and Licensing page is subject to change in the sole discretion of CommunicateHealth upon providing you 30 days notice by e-mail at the last address contained in your membership information and by posting such changes on the Site. If at any time the Rate Schedule is not acceptable to you, you may terminate this Agreement in accordance with its terms.
- Timing and Calculation of Payments. The method and timing of any payments owed to you for compensation for Art Work pursuant to this Agreement will be as stated on the Submission & Payment Process page. In all cases, payment to you will be net of: (i) applicable taxes or other withholdings required by applicable law; (ii) bad debts or other uncollectible sums; (iii) cancellations or refund of a license where the original sale has been reported to you, including but not limited to where due to a fraudulent transaction; (v) overpayment of royalties in a prior period; and (vi) any amounts owing by you to CommunicateHealth under this Agreement or otherwise. Without limiting the generality of the foregoing, CommunicateHealth is entitled to set-off, against any amount owing to you, all amounts to which CommunicateHealth 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 a representation, warranty or indemnity by you under this Agreement.
- No Payment For Restricted Art Work. You agree that CommunicateHealth shall not be required to pay royalties to you regarding certain Art Work if CommunicateHealth is restrained or otherwise prevented from using rights granted under this Agreement relating to such Art Work because those rights are found to be an infringement or contravention of the intellectual or other property rights of a third party.
- Responsibility for Site Access You acknowledge and agree that you will be responsible for each and every access or use of the Site that occurs in conjunction with your name and password on record with CommunicateHealth, and that CommunicateHealth is authorized to accept such name and password as conclusive evidence that you wish to upload Art Work pursuant to this Agreement. CommunicateHealth shall have no liability or responsibility to monitor the provision of Art Work under your record name and password.
- Managing Art Work. All Art Work that you provide to the Site must be consistent with CommunicateHealth rules and policies and the terms of this Agreement. CommunicateHealth shall have the right, but not the duty, to correct, delete, move, reject, or edit any Art Work or related information that it determines, in its sole discretion, violates or may violate this Agreement, the rights of others, or any of its policies, or is otherwise unacceptable. Notwithstanding that Art Work must meet certain standards, CommunicateHealth is not responsible for the content, quality, correctness, or consequences of your Art Work as provided to CommunicateHealth.
- Third Party Use of Art Work. You agree that CommunicateHealth will not be responsible for compliance by any third party with the terms of any agreements they may execute in connection with the purchase, license, or use of Art Work and that CommunicateHealth shall have no liability to you or any person claiming through you for any use of Art Work or breach of any such agreement.
- Confidential Information. 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 CommunicateHealth or its affiliates, licensors, or licensees, that are 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, graphics, documentation, finances, research, development, know-how, trade-secrets, training materials, personnel, identities or personal information of any kind pertaining to any individual, methodologies, Site content belonging to others and other intellectual property. You acknowledge that Confidential Information that you obtain in connection with this Agreement, the use of the Site, and the provision of Art Work constitutes valuable, confidential, proprietary information of CommunicateHealth and its affiliates. You agree that during the term of this Agreement and thereafter you shall not, without the express written consent of CommunicateHealth, use or disclose to any other person any such Confidential Information, except as specifically authorized under this Agreement.
- Representations and Warranties. You hereby represent and warrant as follows:
- You have the legal capacity and authority to enter into this Agreement, are the sole and exclusive owner of the Art Work, 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 that would conflict with this Agreement, including rights or licenses to any Art Work provided under an exclusive Agreement.
- No portion of the Art Work contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement, and all Art Work will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage, or disable the Site or the Art Work or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Art Work or the Site in any way.
- Any information provided with the Art Work 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 improperly altering search results that would otherwise be applicable to such Art Work.
- You agree to indemnify, defend, and hold harmless CommunicateHealth and its affiliates and successors, and their respective shareholders, members, directors, officers, employees, agents and licensees (collectively, the “CommunicateHealth Parties”) from and against any and all claims, liability, losses, costs and expenses (including reasonable attorneys’ fees and costs) each may incur as a result of or in connection with: (i) any use or alleged use of the Site or provision of Art Work under your record name by any person, whether or not authorized by you; (ii) any communication made or Art Work uploaded under your record name; (iii) any breach by you of this Agreement; and (iv) any third party claim to the extent such claim is based upon an allegation that any Art Work has caused injury or damage to, or infringes any copyright, trade secret, trademark, right of privacy or publicity, or other third party right.
- CommunicateHealth reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and in such case, you agree to cooperate with CommunicateHealth's defense of such claim. You further agree to reimburse CommunicateHealth its reasonable attorneys’ fees and costs that it incurs in conducting the defense of such matter.
- CommunicateHealth 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 infringement of intellectual property rights in your Art Work provided to CommunicateHealth. You hereby release CommunicateHealth from any and all claims that you might have, either directly or indirectly, arising out of or in connection with a determination by CommunicateHealth to proceed or not to proceed against any Infringer in any instance. To the extent CommunicateHealth in any legal or enforcement action taken against any such Infringer, recovers monies that are intended to compensate CommunicateHealth for lost licensing fees or statutory damages, it shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable attorney’s fees and costs), divide the recovery between you and CommunicateHealth pursuant to the provisions of the Compensation section above. In the event CommunicateHealth notifies you in writing that it has elected not to proceed against an Infringer, you shall have the right to proceed against such Infringer for such license violation or infringing action.
- Termination You may terminate this Agreement at any time by giving thirty (30) days written notice to CommunicateHealth. CommunicateHealth may also terminate this Agreement for any reason by giving you thirty (30) days notice by e-mail at the last address contained in your registration information. Notwithstanding the foregoing, CommunicateHealth may terminate this Agreement upon written notice effective immediately if you are in breach of this Agreement.
- Effect of Expiration or Termination
- Period of Continued Right To License. CommunicateHealth shall have a goal of removing Accepted Art Work from the Site within thirty (30) days of expiration or termination of this Agreement. It shall have the right to continue licensing Accepted Art Work pursuant to the terms of this Agreement until it removes that Art Work from the Site following termination or expiration.
- Continued Right to Compensation. Regardless of the expiration or termination of this Agreement, CommunicateHealth will continue, in accordance with this Agreement, to pay compensation due to you in respect of licenses granted during any transitional period, subject to any rights of set-off under this Agreement or at law.
- Rights of Set-off. Upon termination or expiration of this Agreement, CommunicateHealth 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.
- No Impact on Existing Licenses. Notwithstanding any other provision in this Agreement, the termination or expiration of this Agreement shall not alter or affect the rights granted to licensees, sub-licensees, or other third parties by CommunicateHealth pursuant to this Agreement.
- Survival of Rights, Defenses, and Limitations of Liability. The rights, defenses and limitations of liability provided to CommunicateHealth, its affiliated entities and their respective directors, members, officers, employees, agents, and representatives under this Agreement shall survive termination of this Agreement. In addition, the provisions of this Agreement relating to managing Art Work, Confidential Information, representations and warranties, indemnity, and disclaimer of warranties also shall survive termination of this Agreement and continue in full force and effect.
- DISCLAIMER OF WARRANTIES
- THE SITE, INCLUDING ANY ART WORK CONTAINED THEREIN, IS PROVIDED BY COMMUNICATEHEALTH “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- WITHOUT LIMITING THE FOREGOING, COMMUNICATEHEALTH DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE 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 SITE INCLUDING WITHOUT LIMITATION ANY OF THE ART WORK OR INFORMATION CONTAINED THEREIN. YOU AGREE THAT NEITHER COMMUNICATEHEALTH NOR ANY OF ITS SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, REPRESENTATIVES, AGENTS, OR LICENSEES SHALL BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OF, OR THE INABILITY TO USE, THE SITE OR ANY ART WORK. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL COMMUNICATEHEALTH OR ANY OF ITS SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, REPRESENTATIVES, 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 SITE, THE ART WORK, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF COMMUNICATEHEALTH 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, COMMUNICATEHEALTH'S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF THE SITE OR THE ART WORK IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED BY COMMUNICATEHEALTH FOR THE ART WORK THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED ONE THOUSAND DOLLARS ($1,000).
- 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 COMMUNICATEHEALTH OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- Notice; Service.
- To you. You consent to service of any required notice or process upon you by email, by registered mail or by overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time you are granted an account by CommunicateHealth.
- To CommunicateHealth.
26 Market Street
Northampton, MA 01060
- Waiver of Trial by Jury and Participation in Class Actions. You agree to waive any right you may have: (i) to trial by jury; and (ii) to commence or participate in any class action against CommunicateHealth related to the Site or this Agreement.
- Recovery of Attorneys’ Fees and Costs. You agree to reimburse CommunicateHealth for any attorneys’ fees and costs it incurs to successfully enforce any terms of this Agreement.
- Applicable Law; Jurisdiction. You agree that this Agreement will be governed under the laws of the Commonwealth of Massachusetts and the laws of the United States of America (without reference to conflicts of laws principles). You hereby irrevocably submit to the exclusive jurisdiction of the federal and state courts located within Hampden or Hampshire County, Massachusetts, U.S.A., with respect to any matter arising under or relating to this Agreement. 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.
- Non-waiver. CommunicateHealth's failure to insist upon or enforce performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
- Assignment of Agreement. 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 CommunicateHealth's prior written consent. CommunicateHealth may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
- Severability. 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.
- Amendments. This Agreement can be amended by the written agreement of the parties or by CommunicateHealth upon thirty (30) days written notice to you. Continued provision of Art Work or failure to terminate this Agreement within thirty (30) days of receipt of such notice of amendment will be deemed to be acceptance of the amendment by you.