This Agreement (the "Agreement") is by and between OnlinePhotoSale and the subscriber (the "Subscriber”). It sets forth the terms and conditions of Subscriber’s subscription to sublicense selected images, photographs and other content (each, a "Work”) from OnlinePhotoSale (the "Subscription”) pursuant to the OnlinePhotoSale subscription program (the "Subscription Program”). As a condition of the Subscription, Subscriber must accept this Agreement in its entirety.
SUBSCRIBER SHOULD REVIEW THIS AGREEMENT CAREFULLY AND INDICATE SUBSCRIBER’S ACCEPTANCE BY CLICKING ON THE "I AGREE" CHECKBOX ("CHECKBOX”). BY CLICKING THE CHECKBOX, SUBSCRIBER AGREES TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT.
1.1 The OnlinePhotoSale Subscription Program is an electronic information service (the "Service") operated by OnlinePhotoSale on the Internet (currently located at http://www.fotolia.com) (the "Service Website”). The Service offers Subscribers access to Works owned or licensed by OnlinePhotoSale. Subscriber acknowledges that most, but not all, of the Works in OnlinePhotoSale catalog are available pursuant to the Subscription Program.
1.2 1.2 Subscriber acknowledges that Subscriber is at least 18 years old, and Subscriber agrees to be bound by all of the terms in this Agreement. If Subscriber is subscribing to the Service in Subscriber’s capacity as an employee of a corporation or other legal entity, Subscriber acknowledges that Subscriber has the authority to enter into this Agreement on its behalf. The right to use the Service may not be transferred.
1.3 This Agreement shall commence on the date the payment is received by OnlinePhotoSale and shall continue for the duration of the Subscription Subscriber has chosen, unless otherwise terminated pursuant to this Agreement (the "Term”).
2.1 Subscriber authorizes OnlinePhotoSale to charge the applicable subscription fee ("Subscription Fee") to a valid credit card (or PayPal) account designated by Subscriber and approved by OnlinePhotoSale. Subscription Fees will be charged at the standard rate in effect at the time the fee is payable. Current Subscription Fees and other charges can be found at www.onlinephotosale.com. Subscriber agrees to pay all sales, use, and other similar taxes imposed in connection with Subscriber’s use of the Service. Subscriber is responsible for all Internet service provider fees, telecommunication and other charges required for Subscriber’s connection to the Service.
3.1 All use of the Service under Subscriber’s account ("Subscriber’s Account”) must comply with the provisions of this Agreement. Subscriber’s registration information must be kept accurate and current.
3.2 Subscriber is responsible for all usage or activity on Subscriber’s Account. SUBSCRIBER, AND NOT FOTOLIA, IS RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO SUBSCRIBER’S CREDIT CARD (OR PAYPAL ACCOUNT) INCLUDING THOSE MADE BY A THIRD PARTY THAT WERE NOT AUTHORIZED BY SUBSCRIBER.
3.3 Subscriber understands and agrees that OnlinePhotoSale may, in its sole discretion: (i) monitor Subscriber’s use of the Service including the Works Subscriber downloads; (ii) flag Subscriber’s account if the number of daily/monthly downloads of Works exceeds daily/monthly maximums; (iii) track any abuse of Subscriber’s subscriber ID and password in connection with the Service or in connection with this Agreement; and (iv) terminate this Agreement, without notice, if OnlinePhotoSale believes there is a violation of this Agreement and/or abuse of Subscriber’s ID and password. If Subscriber’s subscription is terminated because of any violation of this Agreement and/or any abuse of an ID or password, Subscriber loses all rights to use the Service and Works, including any rights which may survive termination of this Agreement, and Subscriber must immediately delete and cease use of all Works acquired from the Service.
3.4 Subscriber must maintain the confidentiality of Subscriber’s password. If Subscriber believes that Subscriber’s Account is not secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of Subscriber’s password), Subscriber must promptly change Subscriber’s password and inform OnlinePhotoSale. Subscriber agrees to take all steps necessary to prevent any third party from duplicating or distributing any Works or any elements of the Service. Defamatory, offensive, pornographic, or otherwise unlawful uses of Works is prohibited. Use of any logo or trademark without authorization from its owner is prohibited. If Subscriber becomes aware of any activity that infringes any rights, including copyrights, in the Works or of the Service, Subscriber must promptly notify OnlinePhotoSale and provide all cooperation reasonably requested by OnlinePhotoSale regarding such activity.
3.5 Any fraudulent, abusive or otherwise illegal activity may be grounds for termination of Subscriber’s Subscription, at OnlinePhotoSale’s sole discretion, and appropriate law enforcement agencies may be notified. Subscriber may not use any means to circumvent the navigational structure or presentation of the Service or to index or improperly retrieve the Works, including but not limited to the use of any site search or retrieval application to "spider" the service. Subscriber may not translate, reverse engineer, decompile, or disassemble the Service or the Works, including any software provided in connection with the Service except to the extent the foregoing restriction is expressly prohibited by applicable law.
3.6 All Works downloaded during the Term of the Agreement can be used after the Term, provided the use is in compliance with this Agreement and theDownload Agreement (Standard License), subject to Section 3.8 below.
3.7 If Subscriber downloads any Works from the Service Website, then Subscriber’s use of such Works shall be subject to the terms of OnlinePhotoSale Download Agreement, subject to Section 3.8 below.
3.8 Subject to the below provisions in this Section 3.8, the Service may be used only by one individual (i.e., by Subscriber, or by one individual on behalf of Subscriber if Subscriber is an entity) and Subscriber may not transfer Subscriber's right to use the Service to any other person or entity (including, without limitation, to any affiliated entity of the Subscriber). Notwithstanding anything to the contrary in this Agreement and/or the applicable download agreement(s), the Subscriber may have the option to select and pay for an increase to the number of authorized users of the Service (a "User Increase") which allows for either three users or an unlimited number of users from among the personnel of the Subscriber only, whereby it is clarified that the Service may not be used by any third party or entity other than the Subscriber’s authorized users, and, for the avoidance of doubt, any entity affiliated to the Subscriber may NOT use the Service nor access any Works downloaded thereby.
If the Subscriber selects and pays for a User Increase, then either three individuals or an unlimited number of individuals (as applicable) may use the Service solely on behalf of the Subscriber; and furthermore, any Works downloaded under such Subscription may be used by any and all of such authorized users subject to the terms of the Download Agreement (Standard License) solely on behalf of the Subscriber, and accordingly the restriction set forth in Section 3(d) of the Download Agreement (Standard License) shall not apply to such authorized users (i.e. the same Work may be downloaded and stored on either three authorized user’s computers or on an unlimited number of authorized user’s computers, as applicable). Subject to applicable law: OnlinePhotoSale reserves the right to request a list of the names of the Subscriber’s authorized users and Subscriber must promptly provide such list; and the Subscriber and each such authorized user shall be jointly and severally liable towards OnlinePhotoSale for full compliance with this Agreement.
3.9 More detailed information regarding the Subscription Program can be found atwww.onlinephotosale.com. Such information may include, without limitation, details about subscription options, User Increases, and daily/monthly download limits (including how the number of downloads is calculated) and the Subscriber hereby agrees that such information, as may be changed by OnlinePhotoSale from time to time, shall govern the Subscription; provided however that in the event of a conflict between this Agreement and such information, then this Agreement shall prevail.
3.10 During the term of an existing Monthly Subscription only, OnlinePhotoSale may provide the Subscriber with the option of purchasing additional download capacity in respect of the then-current month ("Additional Downloads”). Pricing for such Additional Downloads will be as set forth by OnlinePhotoSale on its website or elsewhere. Such Additional Downloads shall be added onto the existing download capacity (if any) remaining to the Subscriber under its then-current Monthly Subscription, but only in respect of the month such Additional Downloads were purchased. At the end of such month, any unused Additional Downloads (if any) may carry over to subsequent months, but only to the extent permitted under Section 6.2 below, if applicable. For clarity, the purchase of Additional Downloads shall not affect the number of downloads to be allotted under the then-current Subscription for subsequent month(s) or renewal(s). A "month” refers to a thirty-day period, and is not necessarily a calendar month.
4.1 Either Subscriber or OnlinePhotoSale may terminate this Agreement and Subscriber’s Account at any time, with or without cause. Additionally, Subscriber’s right to use the Service and/or any Work will terminate immediately upon Subscriber’s breach of any material term of this Agreement. In the event that Subscriber is dissatisfied with the Service for any reason whatsoever the only right available to Subscriber is to terminate Subscriber’s Account by providing notice to OnlinePhotoSale pursuant to this Agreement. OnlinePhotoSale may suspend or terminate Subscriber’s Account, without notice, in the event of Subscriber’s breach of this Agreement or for other conduct which OnlinePhotoSale, in its sole discretion, considers to be unacceptable. Suspension or termination of Subscriber’s Account means that the Service will no longer be accessible to Subscriber. OnlinePhotoSale shall not be responsible for any consequences of such lack of access.
4.2 The provisions concerning payment obligations, Subscriber responsibilities, subscriber information, ownership of copyright and other intellectual property rights, limitations on use, disclaimers, limitations of liability, indemnification, termination, and the miscellaneous provisions of this Agreement shall survive the termination of the Agreement or Subscriber’s Account, whether by Subscriber or OnlinePhotoSale.
4.3 Subscriber agrees that Subscriber is responsible for all charges incurred up to the time the account is deactivated. For the avoidance of doubt, all fees are non-refundable, even if the Subscription is terminated prior to its expiry date.
6.1 If Subscriber does not download the maximum number of Works that Subscriber is entitled to download under the terms of Subscriber’s Subscription plan on any given day, the unused number of permissible downloads will automatically be forfeited and will not carry over to any future day; provided however that the carryover of unused downloads with respect to Monthly Subscriptions (as such term is described below) shall be governed in accordance with Section 6.2 below.
6.2 In respect of Monthly Subscriptions only, if Subscriber does not download the maximum number of Works that Subscriber is entitled to download under the terms of Subscriber’s Monthly Subscription plan during any given month of such a Subscription, then the unused number of permissible downloads will automatically be forfeited and will not carry over to any future months or future Subscriptions, unless (i) such Monthly Subscription is still in effect or (ii) the Subscriber has renewed such Monthly Subscription without letting it lapse and without replacing it with a Subscription of lesser value.
A "Monthly Subscription” refers to a Subscription where the Subscriber is entitled to a certain number of downloads over the course of a given month or 30 day period, as opposed to download limits being linked to a daily amount or otherwise.
7.1 In addition to the representations and warranties made by Subscriber above, each of OnlinePhotoSale and Subscriber hereby represent and warrant that it, or he or she, has the right to enter into this Agreement.