VITAL IMAGERY ROYALTY FREE LICENSE AGREEMENT
THIS IS A LEGAL AGREEMENT BETWEEN YOU, YOUR COMPANY, YOUR EMPLOYER AND/OR YOUR CLIENT (in the case you are
an agent acting for a single client), AS THE CASE MAY BE (COLLECTIVELY "YOU), AND VITAL IMAGERY LTD.
"VITAL IMAGERY" WHEN USED HEREIN SHALL MEAN VITAL IMAGERY LTD, OR ITS WHOLLY OWNED SUBSIDIARIES
INCLUDING, WITHOUT LIMITATION, ICLIPART.COM, IPHOTOS.COM, ACCLAIM IMAGES, ANIMATION FACTORY, AND EACH OF ITS SUBSIDIARIES, AFFILIATES AND/OR DISTRIBUTORS, AS THE CASE MAY BE. THIS ROYALTY-FREE LICENSE AGREEMENT ("AGREEMENT") APPLIES, WITHOUT LIMITATION, TO THE VITAL IMAGERY WEB SITES CURRENTLY LOCATED AT: animationfactory.com, clipart.com, iphotos.com, acclaimimages.com and ANY INTERNATIONAL OR OTHER VERSIONS OF THE FOREGOING, FUTURE VITAL IMAGERY WEBSITES AND/OR ANY IMAGE(S) DELIVERED VIA ANY STORAGE MEDIA.
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS. YOUR ACCEPTANCE OF THESE TERMS IS AN ABSOLUTE CONDITION TO
YOUR ACCESS TO AND USE OF ANY IMAGE(S). DOWNLOADING AND/OR USING ANY IMAGE(S) FROM VITAL IMAGERY CONFIRMS YOUR
ACCEPTANCE OF THESE TERMS AND FORMS A LEGAL CONTRACT BETWEEN YOU AND VITAL IMAGERY. VITAL IMAGERY reserves the
right to change any of the terms of this Agreement at any time, and you agree to be bound by such changes. If
you do not agree to the following terms, as may be amended, do not download or use any Image(s).
"Comp Usage" is defined as the creation of a temporary test use, rough layout or comprehensive rendering of
a proposed work for client review, internal company review or testing. The Image may not be used in any
materials distributed or accessible to the public or in any final product or use, including, without limitation,
any online or other electronic distribution system (except you may transmit comps digitally or electronically
for their review) and may not be sold or sublicensed alone or as part of any product.
"Image(s)" shall mean animations, clipart, composites, digital footage, digital video, film footage, fonts,
graphics, illustrations, images, motion sequences, photographs or any other visual representation regardless of
whether the Image(s) are obtained via download from any VITAL IMAGERY Web site, delivered via any storage media
(CD, DVD, disk, etc.) that is now known or may become known in the future, or obtained from a VITAL IMAGERY'
authorized distributor, together with all accompanying metadata and other material.
"Storage Media" shall mean CD-ROM, digital video disc (DVD), floppy disk, or any other storage device or
media now known, or hereafter created.
"User" shall mean the individual, legal entity or agent entering into this Agreement or any employee or
contractor of such individual, legal entity or agent that edits, manipulates or modifies the Image(s) or are
otherwise directly involved in the creative process including, but not limited to, photo editors, photo
researchers, photographers, art directors or designers. All Users shall only use the Image(s) in accordance with
the terms of this Agreement.
"You" shall mean a single: (i) individual, (ii) legal entity (corporation, partnership, LLC, sole
proprietorship, etc.), or (iii) agent acting on behalf of a single individual or entity.
The Image(s) are copyrighted and protected under the various laws of the United States, International
treaties and other applicable laws. The Image(s) shall remain the sole and exclusive property of VITAL IMAGERY,
or its licensors. Use of the Image(s) is licensed, not sold, pursuant to the terms of this Agreement. Use of the
Image(s) without agreeing to this Agreement, or a breach of these Agreement terms, is copyright infringement.
- Paid License.
- VITAL IMAGERY grants you a perpetual non-exclusive and non-transferable license to use the Image(s) only as provided
in this Agreement. SEE SECTION 13 BELOW FOR OTHER IMPORTANT TERMS AND LIMITATIONS THAT FORM PART OF THIS GRANT.
- Comp Use
- VITAL IMAGERY grants you the non-exclusive and non-transferable right to use Image(s) for Comp Usage for a
period not to exceed sixty (60) days.
- Number of Users (defined above):
- FOR IMAGES ACQUIRED BY PAY PER DOWNLOAD AND STORAGE MEDIA.
YOU ARE GRANTED A TEN (10) USER SINGLE USE, SEAT LICENSE FOR USE OF THE IMAGES. THIS IS NOT A SIMULTANEOUS USE LICENSE. Only one (1) User may access or use the Image(s) at one time with up to a maximum of ten (10)
Users (within the same legal entity entering into this Agreement) who may access or use the Image(s).
Licensee may distribute Image(s) within a network or similar asset management system to no more than ten (10)
computers/workstations within the same company or legal entity for use by one (1) person at a time. If the
Image(s) are to be placed on a network server accessible by more than ten (10) computers/workstations, please
contact your sale representative as you will require a multiple seat license.
SEE SECTION 13 BELOW FOR ADDITIONAL IMPORTANT TERMS AND LIMITATIONS
- FOR IMAGES ACQUIRED BY SUBSCRIPTION OR COMP USE.
YOU ARE GRANTED A ONE (1) USER SEAT LICENSE FOR ACCESS TO THE SUBSCRIPTION OR USE OF THE IMAGES, AS
APPLICABLE. THIS IS NOT A SIMULTANEOUS USE LICENSE. ONLY ONE USER MAY ACCESS THE SUBSCRIPTION WEB SITE, OR USE
IMAGES FOR ANY COMP USE, AS APPLICABLE. YOU MAY NOT DESIGNATE ONE (1) USER TO ACCESS THE SUBSCRIPTION WEB
SITE IF MORE THAN ONE (1) USER WILL USE THE IMAGES. IN SUCH CASES, PLEASE CONTACT YOUR SALES REPRESENTATIVE AS
YOU WILL REQUIRE A MULTIPLE SEAT LICENSE.
- Permitted Uses. You may, subject to Section 1(F) below:
- Back up, and store, single Image(s) as necessary on a single server for archival, tracking or asset
management purposes only. Any copy or archive you make must include copyright notice pursuant to Section 1(G)(III).
- Use the Image(s) in any print or electronic media (except in computer software and electronic video and computer games which require a separate license. See Section F(IX) below), including advertising and editorial use, provided such
use is not intended to allow the re-distribution, re-use of the Image(s) or access to the image(s) apart from a product or service.
- Use the Image(s) on product packaging or in any items for personal use or resale, including book covers,
calendars, consumer merchandise (T-shirts, posters, art, etc.), except in computer software and electronic video and computer games, which require a separate license (see Section F(IX) below), provided such use is not intended to allow the re-distribution, re-use of the Image(s) or access to the Image(s) apart from a product or service apart from a product or service.
- Modify or alter the Image(s) as necessary for your use, subject to the terms of Section 4, and provided
that if such modification or alteration constitutes a derivative work you do not acquire any copyright ownership
or equivalent rights in or to any of the Image(s) or any other property of VITAL IMAGERY or its licensors and
you shall only use such derivative work in accordance with this Agreement. If requested by VITAL IMAGERY, you
agree to execute a written assignment of any such rights, including copyrights, at no cost to VITAL IMAGERY.
- Use the Image(s) as decor in an office, lobby, public area, restaurant, or retail store.
- Use the Image(s) as design elements in video, film, or television broadcasts.
- Use the Image(s) in connection with your business or entity, e.g. corporate identity documents and
letterhead, except as prohibited below.
- Use the Image(s) for any other uses approved in writing by VITAL IMAGERY.
SEE SECTION 13 BELOW FOR OTHER IMPORTANT TERMS AND LIMITATIONS
- Prohibited Uses. You may NOT:
- Sublicense, distribute, transfer or assign rights to the Image(s).
- Reverse engineer, decompile, translate, or disassemble any part of the Image(s).
- Copy or reproduce the Image(s), except as specifically provided for in Section 1(E).
- Remove any copyright, trademark or watermark from any place where it appears on the Image(s).
- Display the Image(s) in any digital format or for any digital use at a resolution greater than 72 dpi,
except in editorial or preliminary design work. Doing so will be viewed as an attempt to distribute the
Image(s) in violation of this Agreement.
- Use the Image(s), or any part of the Image(s), as part of a trademark, service mark, or logo.
VITAL IMAGERY or its licensors retain the full rights to the Image(s), and therefore you cannot establish your
- Use the Image(s) to compete with VITAL IMAGERY. VITAL IMAGERY is in the business of licensing images to
its customers. It is the specific intent of this provision to prohibit you from using the Image(s) to enter,
either directly or indirectly, a similar or competing business.
- Use the Image(s) in a product or service whereby the Image(s) can be used apart from a product or service.
- Use the Images(s) as part of a product in any electronic format intended for multiple distribution or licensing including, without limitation, templates, Web site templates, software products, including computer and/or video games and game consoles, e-greetings, etc.
- Use the Image(s), or resell the Image(s) for use, in mobile or wireless devices, including but not limited to mobile
telephones, handheld game consoles, and PDAs. Such usage is subject to additional licensing fees. Contact
email@example.com or information on reseller licenses.
- Use the Image(s) in any way that could be considered defamatory, pornographic, libelous, immoral, obscene
or fraudulent, or illegal, either by making physical changes to it, in the juxtaposition to accompanying text or
images, or otherwise.
- Without advance written consent from VITAL IMAGERY and any model in such Image(s), use Image(s) that
include people as part of any sensitive subject matters, as determined by VITAL IMAGERY. Sensitive subject use
pertains to both commercial and editorial uses. Availability of model releases does not grant the right to use
Image(s) in any sensitive subject matters.
- Use the Image(s) beyond any limitations or restrictions noted on a VITAL IMAGERY Website.
SEE SECTION 13 BELOW FOR OTHER IMPORTANT TERMS AND LIMITATIONS
- Additional Terms:
- VITAL IMAGERY reserves the right to (i) not permit use of any Image(s) for any reason whatsoever; and
(ii) notify you that certain Image(s) are no longer available for use. Upon such notification, the license to
use such Image(s) shall automatically and immediately terminate.
- All other rights not expressly granted to you are reserved solely for VITAL IMAGERY.
- VITAL IMAGERY requests the copyright notice "© [insert current year] Vital Imagery Ltd." appear
adjacent to the Image(s) or on a credit page.
- VITAL IMAGERY reserves the right to replace Image(s) with an alternative Image for any reason. Upon
notice of such replacement, the license for the replaced Image(s) immediately, and automatically, terminates for
any use of the Image(s) that does not already exist, and this Agreement shall automatically apply to any
replacement Image(s). You agree not to use any replaced Image(s) with future products or services and you shall
take all reasonable steps to discontinue use of the replaced Image(s) in existing products or services.
- PAYMENT TERMS
You agree to pay all Image(s) license fees and no rights are granted under this Agreement until all payments
are made in full. A service charge of two percent (2%) per month, or the amount allowed by law, will be charged
on any unpaid balance. Any claims for adjustments must be made to VITAL IMAGERY within five (5) days of billing.
You shall be liable for all past due amounts, interest and costs of collection, including attorneys' fees.
Refunds are governed by the terms of the individual service used. Please see Section 11 below for terms
applicable to refunds in the event of cancellation.
- This Agreement is effective until it is terminated.
- This Agreement will terminate automatically, without notice from VITAL IMAGERY, if you fail to comply
with any provision of this Agreement.
- You can terminate the licenses granted under this Agreement with respect to any Image(s) by destroying
the Image(s), along with any copies or archives, any CD-ROM or accompanying materials (if applicable), and
ceasing all use of the Image(s) for any purpose. Such termination may not effect payment obligations.
- VITAL IMAGERY may, in its sole discretion: (i) monitor, as frequently as VITAL IMAGERY determines,
anything you download from our Web sites, (ii) limit downloads to a fixed amount of downloads per 24 hour
period so as to insure the best possible service to all subscribers to our Web sites, (iii) track any abuse of
your username and password, (iv) suspend or terminate your account, without notice, if VITAL IMAGERY believes
there is a violation of this Agreement, the Web Site User Agreement and/or any abuse of your username and
- Upon termination of the license to use any Image(s) granted under this Agreement, you agree to (i)
destroy all copies and archives of the Image(s), (ii) cease using the Image(s) for any purpose, and (iii)
confirm to VITAL IMAGERY in writing that you have complied with these requirements. Please see Section 13(A)
below for other terms also applicable to Subscription terminations.
- WARRANTY AND LIMITATION OF LIABILITY
- VITAL IMAGERY represent and warrants that the Image(s) or other Storage Media (if applicable) will be free from
defects in materials and workmanship under normal use for a period of 30 days from the date of license.
- DISCLAIMER OF WARRANTY. EXCEPT AS PROVIDED IN SECTION 4(A) ABOVE, THE IMAGE(S), STORAGE MEDIA AND
ACCOMPANYING MATERIALS (IF APPLICABLE) ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR
PURPOSE. VITAL IMAGERY MAKES NO WARRANTIES FOR ANY IMAGES THAT HAVE BEEN MODIFIED OR ALTERED BY YOU AND YOU
SHALL BE SOLELY RESPONSIBLE FOR ANY CLAIMS RELATING TO OR ARISING OUT OF YOUR MODIFICATION AND USE OF THE IMAGES.
VITAL IMAGERY GRANTS NO RIGHTS OR WARRANTIES WITH RESPECT TO THE USE OF NAMES, TRADEMARKS, LOGO TYPES,
COPYRIGHTED DESIGNS OR WORKS OF ART OR ARCHITECTURE DEPICTED IN ANY IMAGE, AND THE USER MUST SATISFY ITSELF THAT
ALL NECESSARY RIGHTS, CONSENTS, OR PERMISSIONS AS MAY BE REQUIRED ARE OBTAINED. VITAL IMAGERY DOES NOT WARRANT
THAT THE IMAGE(S), WEB SITES OR OTHER MATERIALS, WILL MEET YOUR REQUIREMENTS OR THAT USE WILL BE UNINTERRUPTED
OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE AND USE OF THE IMAGE(S) IS SOLELY WITH YOU. YOU
UNDERSTAND THAT YOU SHOULD SEEK COMPETENT COUNSEL BEFORE USING IMAGES ON OR IN CONNECTION WITH ANY GOODS OR
SERVICES OR FOR ANY OTHER COMMERCIAL PURPOSES. VITAL IMAGERY SHALL NOT BE LIABLE TO YOU OR TO ANY OTHER ENTITY
FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER
DAMAGES, COSTS OR LOSSES ARISING OUT OF YOUR USE OF THE IMAGE(S), VITAL IMAGERY' BREACH OF THIS AGREEMENT OR
OTHERWISE, EVEN IF VITAL IMAGERY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. IN NO
EVENT, SHALL VITAL IMAGERY' TOTAL AGGREGATE LIABILITY TO YOU, OR TO ANY THIRD PARTY CLAIMING THROUGH YOU,
ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE IMAGE(S) (WHETHER IN CONTRACT, TORT OR
OTHERWISE) EXCEED TEN (10) TIMES THE MONETARY AMOUNT ACTUALLY RECEIVED BY VITAL IMAGERY FOR YOUR USE OF THE
- You represent, warrant and covenant that:
- You are at least eighteen years of age and have the full right and authority to enter into this Agreement
on behalf of you and/or your company, employer or principal;
- You do not reside in any country to which export of US products are prohibited or restricted and you may
not ship, transfer or export any of the Images into any country or use any of the Images in any manner
prohibited by any laws, restrictions or regulations;
- You will not use the Image(s) in any way that is not permitted by this Agreement;
- Your use of the Image(s) will not violate any applicable law or regulation of any country, state, or
other governmental entity;
- The information that you provide to VITAL IMAGERY is accurate and true, including, without limitation,
all credit card or other payment information and you shall update such information as necessary;
- You are solely responsible for determining whether your use of any Image(s) requires the consent of any
other party or the license of any additional rights. If you are unsure whether additional rights are needed for
your use of the Images, you are responsible for consulting with competent legal counsel; and
- If you are acting as an agent, you must inform your client/principal of the terms of this Agreement.
- LIMITATION OF REMEDIES
Replacement or Refund:
VITAL IMAGERY' entire liability and your exclusive remedy, with respect to any claims arising out of this
Agreement, except as set out in Section 6 below, shall be at VITAL IMAGERY' sole discretion, either: (i)
replacement of Image(s); or (ii) refund of any fee paid for the specific Image(s). Any claims must be brought
within twelve (12) months of the date that you discovered such claim, or reasonably should have discovered such
claim, or reasonably should have discovered such claim, shall be waived. See Section 11 for other refund terms
that may apply.
You agree to indemnify and hold VITAL IMAGERY, its affiliates, parents, subsidiaries, employees,
directors, officers, successors, assigns, distributors and anyone else associated with VITAL IMAGERY, harmless
from, and against, any and all claims, liabilities, costs, damages, or expenses, (including attorneys' fees)
asserted against VITAL IMAGERY arising out of your use of the Images or in connection with any breach of any of
the terms of this Agreement. You may elect to assume the handling, settlement or defense of any claim or litigation and Jupiterimages shall reasonably cooperate in the defense of any claim. Jupiterimages shall have the right to participate in the litigation, at its own expense, through counsel of its choosing. You will not be liable for legal fees or other costs incurred prior to Jupiterimages giving notice of the claim for which indemnity is sought.
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, consistent with the parties' intent.
- Taxes and other:
You agree to pay and be solely 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 your use of the Image(s),
pursuant to this Agreement.
No action of VITAL IMAGERY, other than an express written, signed waiver may be construed as a waiver of
any part of this Agreement, and no employee of VITAL IMAGERY is authorized to make an oral waiver. In the
event that VITAL IMAGERY waives a specific part of the Agreement, it does not mean that VITAL IMAGERY waives
any other part.
This Agreement will be governed in all respects by the laws of the Province of Ontario, Canada, without reference to its laws relating to conflicts of law. Any disputes arising from this Agreement or its enforceability shall be settled by binding arbitration to be held in Ontario, Canada. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. Notwithstanding the foregoing, VITAL IMAGERY shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in the opinion of VITAL IMAGERY, such action is necessary or desirable.
- LEGAL FEES
You agree to reimburse VITAL IMAGERY for its legal fees, costs and disbursements if VITAL IMAGERY is
successful in enforcing any of its rights under this Agreement including, without limitation, in connection
with any action to collect payment.
You may not assign or transfer to anyone else the rights granted to you in this Agreement, without our prior
written consent. VITAL IMAGERY may assign or transfer this Agreement freely.
If you wish to cancel the rights granted in this Agreement and your invoice, the following apply:
- If You Licensed Single Images or Purchased CD(s) (opened or unopened), you may receive a full
refund at VITAL IMAGERY's sole discretion,
and return any CD's, within fourteen (14) days of your invoice date. After fourteen (14) days, no cancellations
will be accepted, no refunds made and you will be responsible for and must pay the full amount of the invoice.
- If you purchased a Subscription, You may receive a full refund within three (3) days of your
invoice date, provided that you have not downloaded more than five (5) images. After three (3) days, or
download of more than five (5) Images, no cancellations will be accepted, no refunds made and You will be
responsible for and must pay the full amount of the invoice. By requesting a refund, You hereby represent and
warrant that: (i) You have deleted or destroyed all downloaded Images, (ii) that You have not, and will not use
any Images from the subscription, and (iii) that a breach of the foregoing shall require You to immediately
repay the entire subscription fee plus damages to VITAL IMAGERY.
You are solely responsible for all shipping and handling fees with regard to a cancellation. All
cancellations are final. See Termination Section 3 above for other applicable terms.
- ENTIRE CONTRACT
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND
CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND
VITAL IMAGERY, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION
BETWEEN YOU AND VITAL IMAGERY RELATING TO THE SUBJECT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY
PURCHASE ORDER TERMS (EVEN IF SUCH TERMS ARE SUBSEQUENT TO THE DATE OF THIS AGREEMENT). FAQ'S, OTHER
EXPLANATIONS, AND TEXT IN VITAL IMAGERY' WEB SITES ARE FOR YOUR INFORMATION ONLY AND ARE NOT, AND SHALL NOT BE
CONSTRUED AS, PART OF THIS AGREEMENT UNLESS SPECIFIED OTHERWISE IN THIS AGREEMENT.
- ADDITIONAL TERMS ADDENDUM
In addition to terms 1-12 above, the following terms also apply if you obtain certain other services, or
certain other Image(s), from VITAL IMAGERY and form a material part of the license granted by this
If you are purchasing a subscription plan to any of VITAL IMAGERY' Web sites, the following also applies and
is added to the Agreement as follows:
The following is added to Section 4(C):
"(VIII) You will hold all passwords for any subscription in the strictest of confidence. You may not share
or disclose any password to any other user or third party other than as specifically provided for herein. If
you breach any provision of this section, we shall be entitled to (i) terminate this Agreement immediately,
(ii) retain all payments paid pursuant to this Agreement and, (iii) seek any legal or equitable remedies."
The following is added to Section 1(C)(I):
"(b) This Agreement, and your right to use the Image(s) shall immediately, and automatically, terminate upon
the expiration or termination of your subscription term provided, however, that after your subscription term
terminates or expires, you may continue to use any Image(s) incorporated into a product or service during the
subscription term in the same product or service in accordance with the terms of this Agreement. If you are an
agent entering into this Agreement, accessing the subscription and using the Image(s) on behalf of a single
client, this continued use may be exercised by the client and by you solely to the extent you are doing work
authorized by and on behalf of that client."
The following is added to Section 1(F):
"(XIV) Stockpile, download, or otherwise store Images not used during the subscription term for future use."
If you are licensing Images from clipart.com, the following also applies and is added to the Agreement as follows:
The following is added to Section 1(F):
"(XV) Download more than one thousand (1,000) Images per day."
If you are licensing Images from animationfactory.com, the following also applies and is added to
the Agreement as follows:
The following is added to Section 1(F):
"(XV) Download more than five hundred (500) Images per day."
- Third Party Content
If you are licensing Image(s) from VITAL IMAGERY' third party suppliers, special license terms from the third
party suppliers may apply. Please see the individual Web site or Storage Media for details of any special