CUSTOM MEDICAL STOCK PHOTO, INC.
CUSTOM MEDICAL STOCK PHOTO (CMSP) TERMS OF SUBMISSION AND REPRODUCTION CONTRACT FOR RIGHTS MANAGED & ROYALTY FREE IMAGES
NOTE: DO NOT re-use any images without contacting our offices first.
BY USING AND LICENSING IMAGES AT OUR WEBSITE OR RECEIVING IMAGES, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS FOR BOTH RIGHTS MANAGED AND ROYALTY FREE IMAGES WHERE APPLICABLE FOR EACH PRODUCT.IF YOU ARE AT OUR WEBSITE AND YOU DO NOT AGREE TO THE TERMS OF SUBMISSION AND REPRODUCTION, DO NOT CHECK THE BOX INDICATING AGREEMENT, DISCONTINUE USING THIS WEBSITE.
1. LIMITATION ON RIGHTS GRANTED: RIGHTS MANAGED Unless otherwise specifically stated in writing, digital image files, or transparencies, video (hereafter -Images-) delivered with the Delivery Contract or displayed after an internet search remain RIGHTS MANAGED and the exclusive property of CMSP or a particular contributor. No rights are granted until the invoice for the license is paid in full. Reproduction rights granted are strictly limited to the use, duration, and territory restraints specified on the invoice prepared by CMSP and unless otherwise agreed upon in writing apply to the single printed Image or electronic Image within a single size or distribution, in one language only, for one year from the date of the invoice. Rights granted for product use does not include the ancillary right to use the Image, directly or indirectly, in the advertising of that product unless such right is specifically granted. All rights that are not specifically granted to Recipient herein are reserved for CMSP use and disposition without any limitation whatsoever. Any modifications and/or alterations of CMSP digital images are considered derivative works. Any derivative works created from CMSP images may not be copyrighted by you or the end-user client, and are hereby assigned to CMSP and may only be used as permitted in accordance with this license agreement. Exclusive reproduction rights are not granted unless specified in writing on the invoice. All Images submitted for approval are protected by copyright law and international copyright conventions. They may not be reproduced, copied, projected, scanned or used in any way without payment of the CMSP invoice indicating the rights granted. CMSP watermarked Images are provided as previews only and no use is extended to the user other than to assess its qualities within its project before licensing and is not a permission for use.
LIMITATION ON RIGHTS GRANTED: ROYALTY-FREE IMAGES This agreement by CMSP grants you a limited non-exclusive, non-transferable right to use CMSP ROYALTY-FREE IMAGES only for specific permitted uses where the image can be used within a project but not become a product. Licensee has the non-exclusive, non-transferable, non-sublicensable right to Reproduce the Licensed Material identified in the Invoice an unlimited number of times in any and all media. All modifications and alterations of these digital images are considered derivative works. Any derivative works created from digital images may not be copyrighted by you or the end-user client, and are hereby assigned to CMSP and may only be used as permitted in accordance with this license agreement. If requested, you agree to execute a written assignment of any such copyrights with respect to the derivative work. Licensee,s rights to the Royalty Free Licensed Material are worldwide and perpetual and are governed by the same instance of restricting derivative works as indicated above.
2. CD-ROM, INTERNET WEB PAGES & Products and Ancillary Rights: Screen resolution of Images in physical products may not exceed 1280x740 pixels, 300x200 in virtual products unless written permission is granted from CMSP. Recipients; End-User Agreements may not allow Images to be downloaded for commercial purposes and must restrict the end-user from licensing or reproducing or distributing any CMSP Image in a separate database or use in any manner other than with the original product. Recipient agrees to provide CMSP the date of distribution or release of its product. If the release of the product is delayed more than twelve (12) months from the license date, all rights shall revert back to CMSP.
3. RESPONSIBILITY FOR USE AND INDEMNIFICATION: No model releases exist on any Rights Managed Images unless so specified in writing or indicated in CMSP database. Recipient shall not permit Royalty-Free or Rights Managed Images supplied by CMSP to be used in any manner that is defamatory, pornographic, obscene, or contrary to any law, or for diagnosis whether directly or in context or juxtaposition with specific subject matter, to the health care and/or bio-medicine industry or in general. Recipient agrees to review image use with its technical staff or client before licensing or using images and to indemnify and hold CMSP harmless against all claims, liabilities, damages costs and expenses, including reasonable attorney fees, arising out the use of the Image or any breach of this Agreement. Research to correctly caption the subject matter of the Licensed Material is performed with diligence, however, Custom Medical Stock Photo, Inc. does not warrant the accuracy of such information.
4. UNAUTHORIZED USE: Any use other than the use specified on the invoice constitutes copyright infringement. Prompt payment in full is a condition of the rights granted. Recipient(s) failure to pay promptly or its use of the Image beyond the rights granted on the CMSP invoice constitutes a basis for CMSP to rescind the contract and sue for copyright infringement. Since it is difficult to determine in advance the damages for such unauthorized use, CMSP has the option to forgo its right to sue for copyright infringement, if Recipient pays a sum equal to four (4) times CMSP normal fee within ten days of billing for such use. If Recipient fails to make timely payment, CMSP has the right to sue for copyright infringement or breach of contract. Recipients failure to reject this or any other provision within five (5) days of receipt of this Agreement constitutes acceptance of these terms.
5. ASSIGNABILITY: Granted reproduction rights for Royalty Free or Rights Managed images are personal and may not be assigned, nor may any Image submitted to Recipient be loaned or transferred to third parties without written consent from CMSP. Licensee may not post the Licensed Material online in a downloadable format on any website, ftp site or photo sharing site or enable it to be distributed via mobile telephone devices.
6. PAYMENT TERMS: Time is of the essence in Recipient?s performance of its obligations to pay CMSP and to return the Images. Invoices are payable upon receipt. Two percent (2%) per month service fee is applied on any unpaid balance thirty (30) days after the invoice date. Sale of Recipients firm doing business with CMSP cannot excuse the timely payment of the CMSP invoice(s). Recipient agrees that a liquidated damage for the late payment of invoices as a result of the sale of a business or corporation is four (4) times the original fee. Recipient acknowledges that such a quadruple fee is fair and reasonable for the loss of income and costs incurred to track the payment. In the event of a failure to pay according to terms of the CMSP invoice, Recipient hereby releases CMSP from any and all liability arising from the CMSP or its agents attempt to collect payment directly from Recipients client.
7. AVAILABILITY OF IMAGES: Due to the volume of materials processed daily by CMSP, CMSP is unable to verify that all Images are available for delivery, reproduction or reuse. Recipient must inform CMSP in writing as to which Images it wishes to license or purchase copyright. Time is of the essence after delivery of Images is received by Recipient so that CMSP may verify whether any prior use has occurred or whether reproduction by Recipient will conflict with any prior or existing license. In the event that CMSP advises Recipient that an Image is available for use when it is not, the limit of the CMSP liability shall be no more than the amount that Recipient paid CMSP for use.
8. CANCELLATION POLICY : Recipient may cancel an invoice no later than 14 days after the invoice date without incurring any cancellation fees. If Recipient cancels an invoice between 15 and 90 days after the invoice date, a cancellation fee equal to 50% the cost of the license fee of the Image(s) or a -Kill Fee- up to $100 USD will be charged. No refunds after 90 days.
9. SALES: ALL SALES CONDUCTED THROUGH THE mediaMD.com / CMSP SITES ARE FINAL.
10. COPYRIGHT PROTECTION: Unless otherwise agreed in writing, if any Image reproduced for editorial use omits the copyright notice or credit line specified by CMSP herein Copyright, Year, Contributor/Custom Medical Stock Photo the license fee payable shall be three (3) times the amount specified on the final invoice. Since it is difficult to quantify the financial loss, Recipient agrees that a three (3) times fee is fair and reasonable for the loss of recognition and lack of copyright protection resulting from the failure to give a proper copyright notice or credit line.
11. ARBITRATION: A material part of this Agreement is the agreement to arbitrate. Any dispute in connection with these terms, including their validity, interpretation, performance or breach, with the exception of copyright claims, shall be arbitrated in Chicago, Illinois pursuant to rule of the American Arbitration Association and the laws of the State of Illinois. Judgment on the arbitration award may be entered in the highest Federal or State Court having jurisdiction. Any dispute involving $3,000 USD or less may be submitted without arbitration to any court having jurisdiction thereof. Recipient shall pay all arbitration and court cost, reasonable attorney?s fees plus legal interest on any award or judgment. Recipient agrees to pay as liquidated damage, twenty-five percent (25%) of the amount awarded as reimbursement for reasonable legal fees. Copyright claims shall be brought in the federal district court for the Northern District, Eastern Division of Illinois. If CMSP is obligated to go to court rather than arbitration, to enforce rights or collect fees, Recipient agrees to reimburse CMSP for legal fees and disbursements, if successful.
12. UNIFORM COMMERCIAL CODE: The parties agree that said terms incorporate Article 2 of the Uniform Commercial Code and agree to be bound by the same.
13. EXCLUSIVE REMEDY: a) The CMSP limitation of liability and your exclusive remedy will be a replacement image within 90 [ninety] days of purchase with a copy of your receipt to CMSP or to a dealer authorized by CMSP if there are defects in workmanship or defects in materials under normal use. b) CMSP reserves the right to discontinue the use of any digital image for any reason. Upon notice of discontinuance, you agree not to use that image in the future.
14. INTEREST OR CANCELLATION OF OVERDUE INVOICE OR CANCELLED CREDIT CARD OR CREDIT CARD CHARGES: If Licensee fails to pay Custom Medical Stock Photo, Inc. invoice in full within the time specified in the Invoice, Custom Medical Stock Photo, Inc. may add a service charge of two percent (2 %) per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received. Custom Medical Stock Photo, Inc. also reserves the right, in its sole discretion, to revoke the license if payment is not made in full on time. Enforce-ability: If any provision of this Agreement is held to be not enforceable, such provision shall be reformed only to the extent to make it enforceable.
15. WAIVER: No action of Custom Medical Stock Photo, Inc., other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of either party in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by a party of any such rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.
16. ENTIRE CONTRACT: You acknowledge that you have read this agreement and agree to be bound by the terms. This agreement represents the entire agreement between us and supersedes any prior agreement whether written or oral.
Custom Medical Online The Custom Medical Building 3660 W. Irving Park Road Chicago, Illinois 60618-4132 USA (773) 267-3100 fax: (773) 267-6071
www.cmsp.com email: firstname.lastname@example.org