This is a legal agreement (“Agreement”) between Licensee (“you”) (as defined below) and TOTALLYPIC (“Licensor”). By accessing or using the Content (as defined below), Licensee agrees to be bound by the terms and conditions of this Agreement.
Section 1: Definitions
Content - means any Licensor single image, photograph, illustration, clipart or any other visual content, whether obtained via download from Licensor’s website or delivered via any storage media, and shall include all metadata including keywords, descriptions, and captions associated therewith.
Designated Individual - means the one person to which use of the Content is assigned, whether as an individual operating under this Agreement on their own behalf or on behalf of their employer or client; and, in the case of a subscription, the one person to which use of the subscription is assigned, whether as an individual operating under this Agreement on their own behalf or on behalf of their employer or client. If Licensee is not an individual, all access and use of the Content by the Designated Individual shall be deemed an access and use by the Licensee.
Licensee - means:(i) you, if you are an individual entering into this Agreement on your own behalf,(ii) your employer, if you are entering into this Agreement on behalf of your employer, or (iii) your client, if you are an agent entering into this Agreement on behalf of your client. If you are acting on behalf of your employer or client, you: (i) represent and warrant that you have the full legal right and authority to enter into this Agreement and bind such employer or client, (ii) will use the Content only for the interest of such employer or client, and (iii) agree to be bound by the terms and conditions of this Agreement.
Entended License - agreement offered by Licensor in which one of the restrictions of this Agreement have been modified for Licensee’s proposed use of the Content.
Editorial Usage - means the use of Content relating to events that are newsworthy, clearly excludes commercial usage and/or any advertorial usage (i.e. brand name, trademarks, copyright protection properties…)
Journalistic Usage - refers to the print and digital usage of Content in articles and/or supporting media within a newspaper, blog, or other periodical presenting newsworthy events, or the opinion of the publishers or editors.
Section 2: Grant of Rights
Licensor grants Licensee a non-transferable, non-exclusive, non-sublicensable right to use and reproduce the Content, only for the Permitted Uses (“Permitted Uses”) described below. In the case of a subscription, this right is granted for the term of Licensee’s subscription (the “Term”). No ownership or copyright in any Content shall transfer to Licensee by the grant of the license contained in this Agreement. All rights not specifically granted by this Agreement are retained by Licensor.
Section 3: Number of Users
This is a single-user license to be used only by the Designated Individual; however, the Designated Individual may transfer files that contain the Content, provided the transfer does not allow others to extract or access the Content as a stand-alone file. The Designated Individual may only use the Content on one computer at any given time. In the case of a subscription, the Designated Individual may only use the subscription on one computer at any given time, and may not share personal login information with any other individual. Licensor reserves the right to monitor Licensee’s account and implement any measure to prevent Licensee from sharing personal login information.
Section 4: Permitted Uses
Licensee may, subject to the Restrictions on Use listed below, use, alter, crop, modify, or adapt the Content only in connection with the following permitted uses. Any use of the Content that is not a Permitted Use shall constitute copyright infringement, entitling Licensor to exercise all rights and remedies available to it under copyright laws around the world.
- Print media (provided that such use is not intended to allow the re-distribution or re-use of the Content), including advertising and promotional materials, editorial publications, books, magazines, newspapers, and newsletters, provided the aggregate reproduction of any Content is less than five hundred thousand (500,000);
- Ebooks, including license electronic books, provided the aggregate reproduction of any Content is less than five hundred thousand (500,000);
- Multimedia presentations, including film and video presentations, and broadcast and theatrical exhibitions.
- Reproductions for personal use, provided they are not for resale, distribution and license to others;
- Documents in connection with Licensee’s business, such as business cards, letterhead, brochures, catalogs, advertising or promotional posters, displays for use in conventions and trade shows, provided the Content is not incorporated into or official logo, trademark, or service mark and provided the aggregate reproduction of any Content is less than five hundred thousand (500,000);
- Derivative works incorporating the Content, provided Licensee acknowledges that the right to produce derivative works incorporating the Content in no way grants to Licensee or any other party any right to the intellectual property or other rights to the Content.
Section 5: Restrictions on Use
Licensee may not:
- Sublicense, sell, distribute, assign, convey, or transfer the Content, this Agreement, or any of its rights under this Agreement;
- Sell, license, or distribute its final product in such a way that allows others to extract or access the Content as a stand-alone file;
- Use or display the Content in any item intended for resale, license, or other distribution or for use in “print on demand” products, including but not limited to t-shirts, postcards, posters, mugs, artwork, etc.;
- Incorporate the Content into a logo, trademark, or service mark;
- Distribute, post, or upload the Content online or on a server in a downloadable format or enable it to be distributed via devices;
- Use the Content in any electronic template or application, including those that are internet-based, where the purpose is to create multiple impressions of an electronic or printed product, including but not limited to: website designs, presentation templates, electronic greeting cards, or any other electronic or printed matter;
- Use any Content in any way that is in Licensor’s reasonable opinion pornographic, defamatory, fraudulent, lewd, obscene, offensive, libelous, immoral, or in any way illegal, whether directly or in context or juxtaposition with specific subject matter and/or other materials, or that promotes illegal behavior, hostility or discrimination based on age, sex, race, disability, religion, ethnic background, sexual preferences, or any other subject matter that would in Licensor’s reasonable opinion be offensive or unflattering;
- Use any Content in any way that infringes on any copyright, trade name, trademark, service mark, or intellectual property;
- Use Content in connection with sensitive subjects, including, without limitation, topics that may depict the subject matter of the Content, topics that subject persons to ridicule, and topics regarding all sexual or implied sexual activity, sexual preferences or orientation, feminine or, incontinence, impotence, sexually transmitted diseases, teen pregnancy, abortion, adoption, dating agencies, escort or similar services, adult videos or the like, adult entertainment clubs or similar venues, substance abuse, physical or mental abuse, alcohol, drugs, tobacco, political or religious affiliation, or the disparagement of a person or product;
- Use Content in any way in connection with or condoning crime or illegal activities of any kind, including, without limitation, unlawful Internet gambling;
- Reproduce the Content or any part of the Content, on its own or otherwise, more than five hundred thousand (500,000) times without first obtaining an Entended License;
- Use any Content to promote a business that sells or licenses photographic products, or otherwise competes with Licensor in any manner;
- Stockpile or otherwise store licensed Content that is not used within twelve (12) months of the date on which you first licensed such Content, you lose all rights to use that Content.
- If the Content was used during the Term, Licensee may continue to use the Content as it was incorporated into the same product or service, in accordance with the terms of this Agreement;
- Remove any copyright notice, trademark, identification number, or other proprietary right from the Content file;
- Use an automated program to download Content;
- Publicly display Content: as a standalone file in any digital format on the internet;
- Use any Image on a third party website or social media service that claims to acquire rights to the Content contrary to these terms as a result of such use;
- Use an Image marked "Editorial Use Only" for commercial purposes; and
- Falsely represent, whether expressly or by way of reasonable implication, that the licensed Content was created by you or a person other than the copyright holder(s) of that file.
Section 6: Credit Attribution
If the Content is used in print media in Journalistic Usage, the credit line "©TOTALLYPIC / [Artist’s username]" must appear adjacent to the Content. If the Content is used in a film, television production, documentary, or similar audio/vi sual or multimedia product in a Journalistic Usage, the credit line “©TOTALLYPIC / [Artist’s username]” must appear in the audio/visual production credits. If the Content is used online in a Journalistic Usage, a link to http://totallypic.com/ shall appear adjacent to the Content.
Section 7: Subscription Downloads
In the case of a subscription, the number of downloads available to Licensee during the Term is determined by the terms of Licensee’s subscription.
Section 8: Releases and Captions
Licensor grants no rights and makes no warranties with regard to the use of names, people, trademarks, trade dress, logo types, registered, unregistered, or copyrighted designs or works of art or architecture or other forms of intellectual property depicted in any Content, and Licensee must satisfy itself that all the necessary rights, consents, or permissions regarding any of the above, as may be required for reproduction, have been obtained. Licensee acknowledges that some jurisdictions provide legal protection against a person’s image, likeness, or property being used for commercial purposes without their consent. Licensor does not warrant the legality of the Content, the accuracy of caption and keyword information, nor the legality or accuracy of any release information affiliated with the Content.
Section 9: Termination and Revocation
This Agreement is effective until terminated. Licensor reserves the right to automatically terminate this Agreement and revoke the license contained in this Agreement without notice and without refund if Licensee fails to comply with any provision of this Agreement. Upon termination, Licensee must immediately stop using the Content, delete the Content and all copies from all computer systems and storage, and destroy all other copies.
Licensor reserves the right to discontinue Licensee’s use of any Content for any reason and may elect to replace such Content with alternate Content, and this Agreement shall automatically apply to such alternate Content. Upon notice to discontinue the use of any Content, Licensee agrees not to use the Content in the future and shall where possible ensure that its clients and customers do likewise.
Section 10: Electronic Storage
For all Content that Licensee takes delivery of in electronic form, Licensee must retain Licensor’s name and the image number or other identification number associated with the Content as may be included as part of the electronic file. Licensee will take all reasonable measures to safeguard against unauthorized third-party access to the Content. Licensee may make one high-resolution backup copy of the Content for internal back-up purposes. Transfers of files that contain the Content are permitted to third parties integral to the creation of the final product, provided such third parties agree to abide by the terms of this Agreement, and provided such parties understand they have no further rights to use the Content. Upon the expiration or earlier termination of this Agreement, Licensee shall promptly delete the Content from its computer systems and storage.
Section 11: Refund Policy
All refunds are subject to the approval of Totallypic. Licensee may be eligible for a refund, at Totallypic’s reasonable discretion, for any of the reasons listed below. If a refund is approved, Totallypic shall refund Licensee’s payment as a credit on Licensee’s account or to the payment method used to purchase the Content, at Totallypic’s discretion.
An individual download may be eligible for a refund if it meets any of the following criteria:
- Duplicate Purchase - If an identical Content file and size is purchased multiple times.
- Failed Download - If there is a technical problem preventing the successful download. This may include a corrupt file, unexpected removal of file, or site technical difficulties. Refunds cannot be issued for Licensee technical problems, including browser, compatibility, or connectivity issues.
- Poor Quality - If there is a defect in the file which doesn’t meet TOTALLYPIC’s professional quality standards, as confirmed by TOTALLYPIC staff. Licensor will not refund files which: Have been purchased, but are no longer wanted by the Licensee. Licensee is unable to open, due to not having compatible/required software.
Credit packages may be refunded under specific situations. To be eligible for a refund, Licensee must not have used any of the purchased credits, and must notify Totallypic viaservice email within 24 hours of the purchase. Individual credits from a partly used credit package are non-refundable.
To be eligible for a subscription refund, Licensee must not have used their purchased subscription to download any Content files, and must notify Totallypic viaservice email in writing within 30 days of the billing date. If during the purchase process the Licensee sets their subscription to automatically renew, the Licensee is solely responsible for cancelling it when desired.
Section 12: Warranty and Disclaimers
While we have made reasonable efforts to correctly categorize, keyword, caption and title the Content, TOTALLYPIC does not warrant the accuracy of such information.
The representations and warranties made by licensor in this agreement apply only to the content as delivered by licensor and will be invalid if the content is used by licensee in any manner not specifically authorized in this agreement or if licensee is otherwise in breach of this agreement.
Licensee represents and warrants that it has the full legal right and authority to enter into this Agreement and that it will not use the Content in any way that it not permitted by this Agreement. Licensee and the Designated Individual will be jointly and severally liable for any failure of Licensee or the Designated Individual to abide by any term or condition of this Agreement.
Section 13: Indemnity
Licensee agrees to defend, indemnify, and hold Licensor and its parent, subsidiaries, affiliates, and image providers and their respective officers, directors, and employees harmless from all claims, damages, liabilities, cost, and expenses (including reasonable attorneys' fees and costs), arising out of or as a result of (i) Licensee’s failure to abide by any restriction regarding the use of Content; (ii) claims by third parties relating to Licensee's use of any Content outside the scope of this Agreement; or (iii) any other breach by Licensee of this Agreement.
Section 14: Miscellaneous
Jurisdiction and Attorneys’ Fees. The Parties agree that the Taipei District Court shall be the first instance court with jurisdiction, without reference to its laws relating to conflicts of law. Any dispute, controversy, or claim between the parties arising out of or related to this Agreement shall be settled before the courts in Taipei, Taiwan, which shall be the only proper venue for any dispute, controversy, or claim arising hereunder, and each party hereby consents to the exclusive jurisdiction to such court to hear all disputes, controversies, and claims, and consent to service of process by registered mail or overnight courier with proof of delivery. If Licensor is obligated to go to court to enforce any of its rights, Licensee agrees to reimburse Licensor for its legal fees and disbursements if Licensor is successful. The parties agree that this Agreement has been and shall be written in the English language.
Assignment - Licensor may assign or transfer this Agreement. Licensee may not assign or transfer to anyone else the rights granted to Licensee in this Agreement without the prior written consent of Licensor.
Severability - If one or more of the provisions contained in the Agreement is found to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not be affected.
Waiver - No action of Licensor, other than express written waiver, may be construed as a waiver of any provision of this Agreement.
Taxes - Licensee shall be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of Licensee’s use of the Content or as a result of the license granted to Licensee.
Entire Agreement - This Agreement contains all the terms of the agreement between Licensor and Licensee concerning the use of the Content and no term or conditions may be added or deleted unless made in writing and signed by Licensor. Licensor shall have the right to modify the terms of this Agreement at any time, and such modifications will be deemed effective when posted on Licensor’s website. Licensee agrees to be bound by such modifications; however, if such modifications are not acceptable to Licensee, Licensee may terminate this Agreement in accordance with Section 9. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other writing sent by Licensee, the terms of this Agreement shall govern.
Limit of Liability - TOTALLYPIC’s total maximum aggregate obligation and liability to any one Licensee for all claims shall be limited to Ten Thousand United States Dollars – US$1,000 (the “Limits of Liability”).
Section 15: Addendum
1. Unlimited Reproductions (additional fee applies)
Notwithstanding the restrictions contained in Sections 4-1, 4-2, 4-5, and Section 5-11 limiting Licensee to 500,000 reproductions, Licensee shall, with respect to the Content, be entitled to an unlimited number of reproductions. The Agreement shall be deemed amended accordingly and all other terms and conditions of the Agreement remain in full force and effect, including all Restrictions on Use.
2. Physical and Electronic Items for Resale (additional fee applies)
Notwithstanding the restriction contained in Section 5-3 prohibiting the use or display of the Content in any item intended for resale, license, or other distribution, and the restriction contained in Section 5-6 prohibiting the use of the Content in any electronic template or application, Licensee shall, with respect to the Content, be entitled to:
(i) produce physical items for resale, including t-shirts, postcards, greeting cards, calendars, mugs, and mouse pads, provided the aggregate quantity is ten thousand (10,000) or less (“Physical Items for Resale”), and
(ii) produce electronic items for resale, including electronic templates or applications (including “apps”), provided these products are not intended to allow the re-distribution or re-use of the Content (“Electronic Items for Resale”). Collectively, Physical Items for Resale and Electronic Items for Resale shall be referred to as “Items for Resale”.
The right to produce Items for Resale in no way grants to Licensee or any other party, including any recipient of the Items for Resale, any right to the intellectual property or other rights to the Content. Any production of Items for Resale in excess of the allowed run size is prohibited and requires an additional license for the Content.
The Agreement shall be deemed amended accordingly and all other terms and conditions of the Agreement remain in full force and effect, including all Restrictions on Use.
3. Multi-Seat License (additional fee applies)
Notwithstanding the restriction contained in Section 3 limiting the number of users to a single user, if Licensee is an organization, this license may be extended to an unlimited number of users within such organization. The Agreement shall be deemed amended accordingly and all other terms and conditions of the Agreement remain in full force and effect, including all Restrictions on Use.
Revision date: April 28, 2016