KATHY
GOLD TERMS OF SERVICE ("TOS") FOR LICENSEE'S ONLY
Kathy
Gold is the Licensor and the user the person or
entity that purchased the image is the Licensee.
Dear KATHY GOLD LICENSEE:
The following is a legal agreement between you or
the employer or other entity on whose behalf you are
entering into this agreement ("you") and KATHY GOLD
Images LLC ("KATHY GOLD"). Please read this agreement
carefully before downloading any KATHY GOLD Images
("Image" or "Images"). By downloading any Image, you
agree to be bound by the terms of this agreement,
the KATHY GOLD Privacy
Statement and KATHY
GOLD's Website Terms of Use, which documents are
incorporated herein and made a part hereof by this
reference. KATHY GOLD 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 and when
changes are made to these Terms of Service an announcement
will appear on your login page. Please make sure that
you read and understand all such changes. If you do
not agree to these Terms of Service, as same may be
amended from time to time, do not download or use
any Images. Your failure to comply with the terms
hereof could result in the immediate termination of
your account
To use an Image(s) as permitted by this License, you
must purchase and download that Image(s) from kathygold.photoshelter.com.
PART
I
LIMITED LICENSE
1.
All Images on the KATHY GOLD website are protected
by United States and international copyright laws
and treaties. KATHY GOLD who provides content and/or
Images to KATHY GOLD ("Submitters") own all rights,
including the copyrights in and to the Images. KATHY
GOLD and/or its Submitters reserve all rights in
and to the Images not expressly granted to you by
the terms of this license. Your rights to use any
Image are subject to this license agreement and
are conditioned upon your payment to KATHY GOLD
for your use of the Images. If you fail to make
any payment to KATHY GOLD when due, or if any check
is dishonored or credit card charge refused or charged
back, your account will be deemed delinquent. Provided
that your account was current at the time you downloaded
an Image and you were not otherwise in breach of
any of the terms hereof (or of the terms of any
other agreement between you and KATHY GOLD), you
have the right to use the downloaded Image, subject
however, to the terms of this agreement. If your
account becomes delinquent, your right to use any
Images downloaded at any time shall automatically
terminate unless all payments together with any
interest thereon and KATHY GOLD's costs of collection,
bank charges and credit card processing fees are
received by KATHY GOLD no later than fifteen (15)
days from the date that your account became delinquent.
2.
By this Agreement, KATHY GOLD grants you a personal,
non-exclusive, non-transferable, right to use and
reproduce Images in the following ways, subject
to the limitations set forth herein and in Part
II hereof:
a)
On web sites, provided that no Image is displayed
at a resolution greater than 800 x 600 pixels;
b)
As toolbar skins, screensavers and mobile phone
"wallpaper" for your own personal, non-commercial
use, not for resale, download or distribution;
c)
As prints, posters (i.e. a hardcopy) and other reproductions
for decoration in a home, office, restaurant, public
area, or store owned or rented by you or by a client
for whom you render design services;
d)
As a hand painted reproduction (not as a printed
reproduction) on canvas or other material to be
used as decoration or resold;
e)
In coordination with opt-in email marketing. However,
Images cannot be used in connection with unsolicited
email - or linked from unsolicited email;
f)
On letterhead and business cards, pamphlets, brochures,
catalogs and on pop up and/or panel displays for
use in conventions and trade shows, without regard
to the number of times an Image is reproduced, provided
that the Image is not used as and does not function
as a trademark, service mark or logo, or as an element
thereof;
g)
In the artwork for the packaging of any product
without regard to the number of times an Image is
reproduced;
h)
Incorporated into software, including design or
project templates, regardless of the size of the
manufacturing or duplication run(s) of such software
or the number of times such software is downloaded,
provided that the Image or any digital files containing
the Image cannot be unincorporated from the software
or template;
i)
In multimedia presentations and incorporated into
film and video for television and/or internet broadcast,
and theatrical display, without regard to the size
of the intended audience;
j)
In multimedia presentations and incorporated into
film and video for distribution and/or sale in the
home video market, without regard to the size of
the manufacturing or duplication run (including
downloads);
k)
As CD or DVD cover art and/or artwork, without regard
to the size of the manufacturing or duplication
run (including downloads incorporating the artwork)
of such CDs or DVDs;
l)
As part of editorial or advertising copy in magazines,
newspapers, books, book covers, textbooks, editorials
and directories, without regard to the size of the
manufacturing or duplication run (including downloads);
m)
In eBooks, including multi seat license electronic
textbooks, regardless of the size of the manufacturing
or duplication run(s) of such software or the number
of times such software or content is downloaded;
and
n)
Incorporated into merchandise for resale or distribution,
without regard to the size of the manufacturing
or duplication run of such merchandise (including
downloads), including, without limitation, computers,
computer peripherals, clothing, artwork, magnets,
posters, and online and paper greeting cards, provided
that such merchandise: a) combines words and an
Image or Images; or b) the Image is not the primary
factor driving the sale of such merchandise.
3.
In the event that you create a derivative work based
on or incorporating one or more Images, all rights
in and to such Images shall continue to be owned
by KATHY GOLD or its Submitter(s), subject to your
rights to use such Image(s) pursuant to the terms
and limitations set forth herein.
4.
All rights in the Images not expressly granted herein
are reserved by KATHY GOLD for itself and its Submitters.
PART II
RESTRICTIONS
YOU
MAY NOT:
5.
Use an Image other than as specified in PART I.
6.
Use an image in a manner permitted under the Enhanced
License TOS if you did not download the Image as
part of your Enhanced License subscription.
7.
Use or display any Image on websites or in connection
with any service designed to sell or induce sales
of "print on demand" products using or incorporating
Image(s), including, by way of example only, postcards,
mugs, t-shirts, posters, giclee prints, wallpaper,
artwork and other items, this includes custom designed
websites as well as sites such as Cafe Press (i.e.
www.cafepress.com).
8.
Use an Image together with pornographic, defamatory,
or otherwise unlawful or immoral content or in such
a manner that it infringes upon any third party's
trademark or intellectual property rights.
9.
Use an Image in a way that places any person depicted
in the Image in a bad light or in a way that they
may find offensive - this includes, but is not limited
to, the use of Images: a) in pornography, "adult
videos" or the like; b) in ads for tobacco products;
c) in ads or promotional materials for adult entertainment
clubs or similar venues, or for escort, dating or
similar services; d) in connection with political
endorsements; e) in advertisements or promotional
materials for pharmaceutical or healthcare, herbal
or medical products, including, but not limited
to dietary supplements, digestive aids, herbal supplements,
personal hygiene or birth control products; and
f) uses that are defamatory, or contain otherwise
unlawful, offensive or immoral content. You may
not use an Image containing the likeness of a person
if such use implies that the model engages in any
immoral or illegal activity or suffers from a physical
or mental infirmity, ailment or condition.
10.
Resell, redistribute or transfer any Image except
as specifically provided herein. Displaying any
Image in any digital format or for any digital use
at a resolution greater than 800 x 600 pixels, except
in editorial or preliminary design work, will be
deemed to be an attempt to redistribute the Image
and could result in the termination of your rights
under this agreement.
11.
Share an Image by providing access to such Image
on shared disk drives, computer networks, intranets
of any nature or otherwise.
12.
Use KATHY GOLD Images in a manner that competes
with KATHY GOLD's business. This includes, by way
of illustration only and not by way of limitation,
displaying Images in any format (including thumbnails)
for download on a website, and/or offering KATHY
GOLD Images for sale or resale.
13.
Withhold a credit attribution or fail to provide
a copyright notice required by paragraph 30 of these
TOS, except with an advance written waiver of that
requirement from KATHY GOLD in each instance. Each
waiver issued by KATHY GOLD will specify the Image
number or numbers and the usage and is applicable
only to the specified Image(s) and usage(s). Do
not assume that you have or will receive a waiver
for a proposed future use because you received a
waiver in the past for a similar use.
14.
Use an Image marked "Editorial Use Only" for commercial
purposes. If an Image is marked, "Editorial Use
Only", additional permissions may be required for
commercial use. KATHY GOLD does not provide such
permissions.
15.
Use any Image (in whole or in part) as a trademark,
service mark, logo, or other indication of origin,
or as part thereof , or to otherwise endorse or
imply the endorsement of any goods and/or services.
16.
Use or display an Image in such a manner that gives
the impression that the Image was created by you
or a person other than the copyright holder of that
Image.
17.
Represent yourself as an agent, employee, designee,
or affiliate of KATHY GOLD for any purpose, including
but not limited to the negotiation of any business,
distribution, partnership, or development agreement.
18.
Stockpile, download, or otherwise store Images not
used within twelve (12) months of the expiration
of the subscription under which you downloaded the
Image. If you fail to use an Image within such twelve
(12) month period, you will lose all rights to use
that Image.
19.
Use automated programs, applets, bots or the like
to access the KATHY GOLD.com website or any content
thereon for any purpose, including, by way of example
only, downloading Images, indexing or caching the
content of the website.
PART III
MISCELLANEOUS
20.
KATHY GOLD shall be under no obligation to refund
your subscription fee under any circumstances. However,
in the event that KATHY GOLD determines that you
are entitled to a refund of all or part of your
subscription fee, such refund shall only be made
to the credit card account originally used by you
to purchase your subscription. If your subscription
was paid by check, your refund will be made by check.
21.
"Non-transferable"
as used herein means that except as specifically
provided in these TOS, you may not sell, rent, load,
give, sublicense, or otherwise transfer to anyone,
the Image or the right to use the Image. You may
however, transfer Images to a third party for the
sole purpose of causing such third party to produce
and/or manufacture your goods incorporating Images
subject to the terms and conditions herein. In addition,
the work you produce with the Image must be used
for yourself, your direct employer, client, or customer,
who must be the end user of your work. You agree
to take all commercially responsible steps to prevent
third parties from duplicating any Image. If you
become aware of any unauthorized duplication of
any KATHY GOLD Image(s) please notify me via my
website.
22.
If you plan on using or do use Images as part of
work for a client or customer, you must keep accurate
and detailed records of the use of each Image. These
records must include the name of the client or customer,
the KATHY GOLD Image number as well as the date
or dates on which the Images were used. You shall
deliver copies of such records to KATHY GOLD at
KATHY GOLD's request.
23.
You agree that you will not share your username
and password combination. Your KATHY GOLD username
and password are to be used only by you. Each person
that desires to access the KATHY GOLD site must
have his/her own username and password and must
purchase a subscription. You may use your subscription
on ONE COMPUTER at any one time. If any two users
on two separate computers are using the same username
and password, we reserve the right to terminate
that subscriber's account without refund or prior
notice. We reserve the right to monitor accounts
and institute mechanical or other means to stop
users from sharing their login information. Customized
subscriptions with multiple points of access are
available from KATHY GOLD. Please contact
KATHY GOLD Support for details.
24.
You agree to indemnify and hold KATHY GOLD , its
officers, employees, shareholders, directors, managers,
members and suppliers harmless against any damages
or liability of any kind arising from any use of
the Image other than the uses expressly permitted
by this Agreement. You further agree to indemnify
KATHY GOLD for all costs and expenses that KATHY
GOLD incurs in the event that you breach any of
the terms of this or any other agreement with KATHY
GOLD.
25.
KATHY GOLD warrants and represents that:
a)
unaltered Images downloaded and used in full compliance
with these TOS and applicable law, will not infringe
any copyright, trademark or other intellectual property
right, nor will such unaltered Images violate any
third parties' rights of privacy or publicity;
b)
Unaltered Images do not and will not: (i) violate
any US law, statute, ordinance, or regulation; (ii)
be defamatory or libelous; or (iii) be pornographic
or obscene.
c)
While KATHY GOLD makes commercially reasonable efforts
to ensure the accuracy of Image keywords and descriptions,
as well as the integrity of our Editorial Images,
KATHY GOLD makes no warranties and/or representations
regarding such keywords, Image descriptions or integrity.
26.
Subject to the terms hereof, and provided that you
have not breached the terms of this or any other
agreement with KATHY GOLD, KATHY GOLD shall defend,
indemnify, and hold you harmless up to the "Limits
of Liability" (as hereinafter defined). Such indemnification
shall only apply to claims for damages directly
attributable to KATHY GOLD's breach of the foregoing
warranties and representations, together with the
expenses (including reasonable attorneys' fees),
arising out of or directly connected to any actual
or threatened lawsuit, claim, or legal proceeding
alleging that the possession, distribution, or use
of Images downloaded and used by you pursuant to
these TOS violate KATHY GOLD's warranties contained
herein. This indemnification is conditioned upon
you notifying KATHY GOLD, in writing, of any such
claim or threatened claim, no later than five (5)
business days from the date you know or reasonably
should have known of the claim or threatened claim.
Such notification must include all details of the
claim then known to you (e.g., KATHY GOLD Image
Number, a copy of the Image as used, name and contact
information of person and/or entity making the claim,
nature and date of alleged claim, copies of any
correspondence received and/or sent in connection
with the claim). The notification must be faxed
to KATHY GOLD at 1-646-786-4782 with a hard copy
to KATHY GOLD , 60 Broad Street, 30th Floor, New
York, New York, 10004, Attention: General Counsel,
via Certified Mail, Return Receipt Requested, or
overnight courier, recipient's signature required.
KATHY GOLD shall have the right to assume the handling,
settlement or defense of any claim or litigation
to which this indemnification applies. You agree
to cooperate with KATHY GOLD in the defense of any
such claim and shall have the right to participate
in any litigation at your own expense. KATHY GOLD
shall not be liable for any legal fees and/or other
costs incurred prior to receiving complete notification
of the claim as provided herein.
27.
Notwithstanding any thing to the contrary contained
herein, KATHY GOLD shall not be liable for any damages,
costs or losses arising as a result of modifications
made to Images or the context in which the Images
are used by you.
28.
KATHY GOLD's total maximum aggregate obligation
and liability to any one licensee for all claims
shall be limited to One United States Dollars -
US$1.00 - (the "Limits of Liability").
29.
This contract is governed by and shall be construed
in accordance with the laws of the State of New
York. The United Nations Convention on Contracts
for the International Sale of Goods does not apply
to or otherwise affect these TOS. You hereby consent
to the personal jurisdiction of the state and federal
courts located within such state. All actions, controversies
and disputes arising from or relating to this agreement
shall be heard and decided exclusively before the
courts located within the State, County and City
of New York and not elsewhere. You agree that service
of process in any actions, controversies and disputes
arising from or relating to these TOS may be effected
by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail),
postage prepaid, to the other party however, nothing
herein shall affect the right to effect service
of process in any other manner permitted by law.
This agreement shall be construed neither against
nor in favor of any party, but rather in accordance
with the fair meaning of the language hereof. The
invalidity or unenforceability of any part of this
agreement shall not affect the validity or enforceability
of the balance hereof.
30.
If you are unsure of your rights under this agreement,
or if you wish to use an Image in a manner not expressly
permitted under this Enhanced License agreement,
please contact
KATHY GOLD Support.
31.
If you are entering into this agreement on behalf
of your employer or other entity, you warrant and
represent that you have the full right and authority
to do so. In the event that you do not have such
authority, you agree that you will be personally
liable to KATHY GOLD for any breaches of the terms
of this agreement.
32.
The number of Image downloads available to you is
determined by the Subscription you purchase. For
the purposes of this agreement, a day is defined
as the twenty four (24) hour period beginning at
the time your subscription is purchased. A month
is defined as thirty (30) consecutive days beginning
on and including the date that you purchase your
subscription.
33.
Credit Attributions and Copyright Notices
a)
Though KATHY GOLD requires the following credit
attributions and copyright notices, KATHY GOLD may
waive such requirements on a case by case basis.
If you have any questions regarding credit attributions
and copyright notices or to request that KATHY GOLD
grant you a waiver of such requirements, please
contact KATHY GOLD Customer Support. No waiver of
such requirements shall be effective unless confirmed
in an email or other writing from KATHY GOLD to
you.
b)
You shall accord credit and provide a copyright
attribution to the copyright holder and to KATHY
GOLD in connection with the use of any Image in
a book, magazine, e-zine or newspaper. Such credit
and attribution shall be in substantially the following
form:
"Image Copyright Name of Artist,
2010 Used under license from KATHY GOLD.com".
c)
Notwithstanding the foregoing, in the event that
the Image is used in connection with merchandise,
or a film, television broadcast, documentary or
other video or multimedia project or presentation,
you shall use reasonable commercial efforts to accord
the copyright holder and KATHY GOLD a credit as
provided above. However, if no other copyright holders
are accorded credit, only KATHY GOLD shall be accorded
a credit in substantially the following form:
"Image(s) used under license
from KATHY GOLD.com".
d)
All credits shall appear on the copyright page or
in the copyright section of the work into which
the Image is incorporated. If there is no copyright
page or section, the notice and credit may be located
anyplace on the work. In all cases the credit and
attribution shall be of such size, color and prominence
so as to be clearly and easily readable by the unaided
eye.
IN THE EVENT THAT YOU BREACH ANY OF THE TERMS OF
THIS OR ANY OTHER AGREEMENT WITH KATHY GOLD, KATHY
GOLD SHALL HAVE THE RIGHT TO TERMINATE YOUR ACCOUNT
WITHOUT FURTHER NOTICE. SUCH TERMINATION SHALL BE
IN ADDITION TO KATHY GOLD'S OTHER RIGHTS AT LAW
AND/OR EQUITY. KATHY GOLD SHALL BE UNDER NO OBLIGATION
TO REFUND ANY FEES PAID BY YOU IN THE EVENT THAT
YOUR ACCOUNT IS TERMINATED BY REASON OF ANY SUCH
BREACH OR BREACHES.
KATHY GOLD MAKES NO REPRESENTATIONS OR WARRANTIES
WHATSOEVER OTHER THAN THOSE EXPRESSLY MADE IN PARAGRAPH
25 HEREOF, AS TO THE LEGALITY OR VALIDITY OF ANY
RELEASE ASSOCIATED WITH AN IMAGE. EXCEPT AS PROVIDED
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.
KATHY GOLD GRANTS NO RIGHTS AND MAKES NO REPRESENTATIONS
OR WARRANTIES WITH RESPECT TO THE USE OF ANY NAMES,
TRADEMARKS, LOGOTYPES, COPYRIGHTED DESIGNS OR WORKS
OF ART OR ARCHITECTURE DEPICTED IN ANY IMAGE. IT
IS YOUR RESPONSIBILITY TO ASSURE THAT ALL NECESSARY
RIGHTS, CONSENTS, OR PERMISSIONS THAT MAY BE REQUIRED
FOR YOUR USE OF ANY IMAGES ARE OBTAINED.
KATHY GOLD DOES NOT WARRANT THAT THE IMAGE(S), KATHY
GOLD WEBSITES, 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.
EXCEPT AS SPECIFICALLY PROVIDED IN PARAGRAPH 26
HEREOF, IN NO EVENT, SHALL KATHY GOLD'S 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 KATHY GOLD WEBSITE
AND/OR IMAGE(S) CONTAINED THEREON (WHETHER IN CONTRACT,
TORT OR OTHERWISE) EXCEED THE MONETARY AMOUNT ACTUALLY
RECEIVED BY KATHY GOLD FROM YOU FOR YOUR USE OF
THE APPLICABLE IMAGE(S). NEITHER KATHY GOLD NOR
ANY OF ITS OFFICERS, EMPLOYEES MANAGERS, MEMBERS,
SHAREHOLDERS, DIRECTORS OR SUPPLIERS SHALL BE LIABLE
TO YOU OR TO ANY OTHER PERSON OR 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), KATHY GOLD'S BREACH OF THIS AGREEMENT,
OR OTHERWISE, UNLESS EXPRESSLY PROVIDED FOR HEREIN,
EVEN IF KATHY GOLD HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES, COSTS OR LOSSES. IN NO EVENT, SHALL
KATHY GOLD'S 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 KATHY GOLD WEBSITE AND/OR IMAGE(S) CONTAINED
THEREON (WHETHER IN CONTRACT, TORT OR OTHERWISE)
EXCEED THE LIMITS OF LIABILITY.
IN THE EVENT THAT YOU USE FRAUDULENT CREDIT CARD
INFORMATION TO OPEN AN ACCOUNT OR OTHERWISE ENGAGE
IN ANY CRIMINAL ACTIVITY AFFECTING KATHY GOLD, KATHY
GOLD WILL PROMPTLY FILE A COMPLAINT WITH www.ic3.gov,
THE INTERNET CRIME COMPLAINT CENTER, A PARTNERSHIP
BETWEEN THE FEDERAL
BUREAU OF INVESTIGATION (FBI) AND THE NATIONAL
WHITE COLLAR CRIME CENTER.
Effective 20 October 2009 |
