Licensing

Image Use Agreement

Welcome to the PhotoGain.com website ("Website"). You are required to follow the terms and conditions if you use the Website located at www.PhotoGain.com. Your use of the Website indicates your acceptance of these terms and conditions which applies to all files on the Website.

1. Use of image files.

   PhotoGain.com licenses to you the use of image files only as provided below on a nonexclusive and nontransferable basis upon payment of the required fees. All other rights to the image files and any accompanying materials such as copyright are retained by PhotoGain.com and its Members.

2. Consent.

   You must be at least 18 years of age to use the Website and accept this Agreement. PhotoGain.com may require any registrant to provide sufficient proof that he or she is at least 18 years of age. Minors can access PhotoGain.com only by having their parent or legal guardian register on their behalf. By opening such an account, the parent or legal guardian authorizes the minor to use and agrees to be bound personally by the terms and conditions of this agreement. PhotoGain.com may elect at its sole discretion to monitor any area or records pertaining the Website for compliance with this agreement or for any other reason.

3. Intellectual Property and Privacy Laws.

   You acknowledge that the content available through the Website is the property of PhotoGain.com or its content providers and is protected by copyright and possibly other intellectual property laws. Furthermore, you acknowledge that trademarks and copyrights of the subject matter depicted in the images are subject to protection by intellectual property laws and that you must obtain consent from the owners of the intellectual property when necessary to comply with intellectual property laws. Absent an explicit written statement from PhotoGain stating otherwise, you should assume that no consent from persons or owners of property depicted in an image has been given regarding publication and that model and property releases are not available from PhotoGain.com or its content providers. Further, PhotoGain.com makes no claims or warranties as to the validity of the model or property releases associated with any image and such releases should be verified by you and that such usage shall be at your risk.

4. Prohibited Uses.

   You may not:

   1. Use images in any way that constitutes a violation of the rights of individuals such as defamation, intrusion on privacy, misappropriation of likeness, or depiction in a false light.
   2. Use images in any way that violates civil and criminal laws such as those regulating pornography, obscenity, fraudulent schemes, counterfeiting, espionage, and aid to illicit activities.
   3. Post any file obtained from the Website in a gallery format designed or intended to facilitate transfers of files via the Internet by individual users.
   4. Resell or distribute any file obtained from the Website or its associated depiction unless the image is an integrated part of the product being resold, and comprises less than 50 percent of the overall product's importance or value.
   5. Reverse engineer, decompile, or disassemble any part of a file or accompanying materials except as permitted by law.
   6. Use any part of an image as a trademark, service mark, logo, or part thereof.
   7. Remove any copyright or trademark information from any place in the files or accompanying materials.
   8. Display or post multiple images obtained from the PhotoGain.com Website in a size larger than 600 pixels in a stand-alone or gallery format that makes it easy for people to copy, save or steal the photos. If more than 10 images from the Website are being used, size must be no more than 150 pixels in height or width. This is to prevent photos from being freely or easily re-distributed. If your photo is larger than 600 pixels and is an integrated part of a product, design, template or website, this is fine.

5. 5. Permitted Uses.

   You may:

   1. Display the images from image files in any manner not prohibited by the agreement (see Section 4.) provided that you include the copyright information from the image file in the form of a legally effective copyright notice if at all possible in this form: "© Photographer's Name. Image from PhotoGain.com".

      Acceptable uses include but are not limited to electronic or print media, consumer merchandise, websites, website templates, clothing, book and album covers, product packaging, advertisements, newsletters, educational materials, and promotional materials.

      Purchasing a photo is good for one product. If you are creating several products you must re-purchase the photo for each new product:

      Example 1: You write a newsletter and use a PhotoGain.com image in it and you distribute 100,000 copies. If you decide to use the photo again for a different newsletter or different purpose, you must re-purchase it.

      Example 2: You create a website template and sell it on your site to any number of people, using a PhotoGain.com image in it. If you decide to use the photo again for a different template, you must re-purchase it for each new template you create.

   2. Modify or alter images as necessary for your use, as allowed for elsewhere in these terms and conditions, provided that the rights to any derivative work shall belong to PhotoGain.com or the appropriate content provider. All copyrights with respect to such derivative work shall be considered assigned to PhotoGain.com or the appropriate content provider, which assignment the parties hereby agree is valid under the copyright laws of the United States and other countries. If requested by PhotoGain, you agree to execute a written assignment of any such copyrights with respect to such derivative work.
   3. In the normal course of workflow, convey to third parties such as printers a temporary copy of a file that is integral to your work product and without which the product could not be completed.
   4. Print a copy of the photo for your own use in any size, but you may not resell it, or redistribute it to others in any way.

6. Discontinuance:

   PhotoGain.com reserves the right to elect at a later date to replace the Image File(s) with an alternative for any reason. Upon notice of such replacement, the license for the replaced Image File(s) terminates for any products that do not already exist, and this license automatically applies to the replacement Image File(s). You agree not to use the replaced Image File(s) for future products and to take all reasonable steps to discontinue use of the replaced Image File(s) in products that already exist.

7. No resale or sublicensing.

   You may not resell, distribute or sublicense the files, accompanying material, or the rights to use the files to anyone for any purpose, except as specifically provided for in this agreement.

8. Assumption of risk.

   You expressly agree that use of all images, files, or software distributed by PhotoGain.com is at your sole risk. PhotoGain.com does not warrant or guarantee that files or images on the Website are free from copyright or other intellectual property concerns.

9. Disclaimers.

   All images, files, and software distributed by PhotoGain.com are provided on an "as is" and "as available" basis and without warranties or conditions of any kind either express or implied. PhotoGain.com assumes no responsibility for any actions or liabilities arising from their possession or use. PhotoGain.com disclaims all warranties, express or implied, including but not limited to, implied warranties of merchantability and fitness for a particular purpose. Under no circumstances shall PhotoGain.com or its content providers be liable to you or any third-party for any indirect, consequential, incidental, special or punitive damages, including but not limited to lost profits and business interruption, irrespective of the type of cause of action, arising in any way from use of the Website, even if PhotoGain.com is expressly advised of the possibility of such damages. In no event shall PhotoGain.com's liability exceed the fees paid for the use of the files. No oral advice or written information given by PhotoGain.com, its content providers or the like, shall create a warranty; nor shall customer rely on any such information or advice. You acknowledge that this paragraph shall apply to all content, images, and services available through this Website. In those states that do not allow the exclusion or limitation of liability for consequential or incidental damages, liability is limited to the fullest extent permitted by law.

10. Assignment

    You may not assign any right and obligation under this agreement without obtaining the prior written consent of PhotoGain.com. PhotoGain.com may assign this agreement.

11. Severability

    Should any clause of this agreement be found unenforceable, that will not affect any other clause and each will remain in full force and effect.

12. Arbitration

    A material part of this contract is the Agreement to arbitrate. Any and all disputes arising out of, under or in connection with this Agreement, with the exception of copyright claims, including without limitation, its validity, interpretation, performance and breach, shall be submitted to arbitration in Knoxville, Tennessee. Judgment upon any award rendered may be entered in the highest court of the forum having jurisdiction. This Agreement, its validity and effect, shall be interpreted under, and governed by, the laws of the State of Tennessee, and you agree that the arbitrators shall award all costs of arbitration, including legal fees, plus legal rate-of-interest to the successful party. Copyright infringement claims shall be brought in the Courts of the State of Tennessee. You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery.

13. Legal Fees and Jursdiction

    If PhotoGain.com is obligated to go to court, rather than arbitration, to enforce any of its rights, or to collect any fees, you agree to reimburse PhotoGain.com for its legal fees, costs and disbursements if PhotoGain.com is successful. You agree that the Courts of the State of Tennessee are the agreed and appropriate forums for any such suit, and consent to service of process by registered mail or overnight courier with proof of delivery.

14. Entire Agreement

    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 PHOTOGAIN.COM, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND PHOTOGAIN.COM RELATING TO THE SUBJECT OF THIS AGREEMENT.

    You agree that by using this site or images, photos or files from this site, that you are bound by this Agreement. This Agreement evidences the complete understanding of the parties (you and PhotoGain.com) with respect to the subject matter hereof and may not be amended, modified or waived in whole or in part except in a writing signed by the parties.