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AH PHOTOGRAPHY TERMS OF SALE
GENERAL TERMS AND CONDITIONS OF SALES
WWW.ALISONHARTWELLPHOTOGRAPHY.COM
These General Terms and Conditions (the “Agreement”) constitute a license agreement, which governs the use of Photographs (as defined below) provided by AH Photography on AlisonHartwellPhotography.com or otherwise (the "Site") to the Customer (or “you” or “your”).
In consideration of AH Photography providing this license to use the Photographs, you agree to be bound by the terms and conditions of the Agreement.
AH Photography owns all proprietary rights in and to the copyrightable and/or copyrighted works as described in the order, incorporated herein by reference, and hereinafter collectively known as the “Photographs”, and has the exclusive right to license to others the right to produce, copy, make, sublicense or sell the Photographs.
AH Photography owns all rights in and to the Photographs and retains all rights to the Photographs, which are not transferred herein.
1. Grant of License.
AH Photography hereby grants to the Customer, in accordance with the terms and conditions of this Agreement, a personal, non-exclusive, non-transferrable license to use the photographs in accordance with the order.
This license is limited. However, AH Photography shall have the right, at its sole option, to terminate this Agreement, without notice, if the Customer were to violate any provision of this Agreement.
2. Ownership of the Photographs.
The Customer acknowledges that AH Photography is the sole and exclusive owner of the Photographs and of all associated intellectual property registrations and pending registrations, as applicable, and the Customer shall do nothing inconsistent with such ownership. The Customer further agrees that it will not claim any ownership right to the Photographs, or any derivative, compilation, sequel or series, or related Photographs owned by AH Photography.
The Customer agrees that nothing in this Agreement shall give the Customer any right, title, or interest in the Photographs other than the right to use the same in accordance with the terms of this Agreement. The Customer agrees not to make derivative work based on the Photographs. The Customer admits the validity of all copyrights for the Photographs and all associated intellectual property registrations, and acknowledges that any and all rights that might be acquired by the Customer because of its use of the Photographs shall inure to the sole benefit of AH Photography.
3. Fees.
The Customer agrees to pay AH Photography a one-time royalty in accordance with the conditions of the order. Extensions or modifications of this Agreement are subject to fees adjustments, to be agreed upon by the Parties prior to extensions or modifications.
4. Use of the Photographs.
(a) AH Photography shall have control over the quality of use of the Photographs and the quality of any goods and/or services sold under or related to the Photographs.
For all advertisements and packaging use, the Customer shall display with the Photographs an approved notice notifying the public of the copyright and/or trademark rights owned by and licensed within this Agreement.
The Customer agrees to mark all Photographs with any reasonable copyright and/or trademark notices provided by AH Photography and comply with any reasonable standards promulgated by AH Photography that relate to the intellectual property protection and use of the Photographs by the Customer.
(b) The Customer shall provide AH Photography, upon AH Photography’s request, with representative samples of how the Customer is using the Photographs. If, at any time, any use of the Photographs fails to conform to AH Photography’s standards, AH Photography may provide to the Customer notice of said failure. The Customer shall cure said failure within fifteen (15) days from the date of such notice. In the event that said failure is not cured within the said period, AH Photography may then terminate this Agreement immediately, non-conforming copies of the Photographs shall be destroyed or promptly submitted to AH Photography.
If AH Photography fails to approve any modifications or changes to the Photographs within fifteen (15) days of the Customer’s submittal, AH Photography’s approval shall be deemed to have been granted.
5. Restricted use
Any unauthorized use, in any event, shall trigger the payment by the Customer of minimum liquidated damages equal to three hundred percent (300%) of the rate of the authorized licensed use, with a minimum of one hundred and twenty-five dollars ($125 USD), without prejudice of AH Photography’s right to establish a greater damage.
The following uses are not permitted under the license granted:
• use of Photographs in a product intended for sale, which they constitute the primary value, such as postcards, calendars, books and posters;
• trim Photographs, extracting an item, use partially or editing;
• copy or distribute copies of the Photographs;
• resell, donate, sublicense, give, lend, rent, or distribute all or part of Photographs regardless of its format and its definition;
• use Photographs in a context that could be pornographic, political, defamatory, immoral, offensive or demeaning;
• use Photographs as part of a trademark, design-mark, trade name, business name, service mark, or logo.
6. Indemnification and Limitation of Liability
(a) The Customer shall fully indemnify, defend, and hold harmless AH Photography from and against any and all claims, losses, damages, expenses, and liability (other than those for infringement), including without limitation, suits arising from offering, promoting, advertising, sale, or use by the Customer, or any of its authorized sub-licenses, of the Photographs, whether or not such use conforms to standards set by AH Photography, provided that such claim, loss, damage, expense, or liability does not arise from the negligence of AH Photography.
(b) AH Photography has the right, but shall not be obligated, to obtain and maintain federal intellectual property registration of the Photographs. In the event that the Customer becomes aware of any claimed or alleged infringement of the Photographs by a third party, the Customer shall promptly advise AH Photography in writing of the nature and extent of such infringement or dilution. AH Photography has no obligation to take any action whatsoever in the event that any infringement or dilution occurs with respect to the Photographs, but AH Photography shall have the sole right to determine whether any action shall be taken. In the event AH Photography sues or takes other action, legal, equitable, administrative, or otherwise, to stop an infringement or dilution of the Photographs, the Customer shall cooperate fully with AH Photography. The Customer has no right to enforce the Photographs’ rights through litigation without prior written authorization of AH Photography. In any legal action arising from use, or ownership rights of the Photographs, where both AH Photography and the Customer are co-parties, AH Photography retains the right to control the litigation, including any and all settlement negotiations.
(c) IN NO EVENT SHALL AH PHOTOGRAPHY OR ANY OF ITS AFFILIATES OR PHOTOGRAPHS PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE PHOTOGRAPHS, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF YOU MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION FIRST AROSE.
(d) NOTWITHSTANDING ANY OTHER TERM HEREIN, AH PHOTOGRAPHY SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFICATIONS MADE TO THE PHOTOGRAPHS BY YOU.
(e) NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF AH PHOTOGRAPHY UNDER THIS AGREEMENT AND ANY OTHER AGREEMENT UNDER WHICH YOU HAVE LICENSED THE SAME PHOTOGRAPHS, REGARDLESS OF THE FILE SIZE, OR THE USE OR EXPLOITATION OF ANY OR ALL OF THE PHOTOGRAPHS IN ANY MANNER WHATSOEVER AND THE OBLIGATION OF AH PHOTOGRAPHY SHALL BE LIMITED TO THE AGGREGATE AMOUNT PAID BY THE CUSTOMER FOR THE PHOTOGRAPHS UPON WHICH SUCH LIABILITY CLAIM IS BASED.
7. Severability
Any provision of this Agreement, which is or becomes unenforceable in any jurisdiction, whether due to being void, invalidity, illegality, unlawfulness or for any reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as void and the remaining provisions of any relevant terms and conditions, policies and notices shall remain in full force and effect.
8. Applicable laws (choice of venue and forum)
The transaction with respect to the license which is the subject of this online sale shall be governed by and interpreted and constructed in accordance with the laws of the State of New York, and any action arising out of such transaction shall be brought exclusively in courts seated in Dutchess County, New York or the Federal District Court, Poughkeepsie, New York, and Customer’s agreement to such exclusive jurisdiction and venue is a condition of the Agreement.
GENERAL TERMS AND CONDITIONS OF SALES
WWW.ALISONHARTWELLPHOTOGRAPHY.COM
These General Terms and Conditions (the “Agreement”) constitute a license agreement, which governs the use of Photographs (as defined below) provided by AH Photography on AlisonHartwellPhotography.com or otherwise (the "Site") to the Customer (or “you” or “your”).
In consideration of AH Photography providing this license to use the Photographs, you agree to be bound by the terms and conditions of the Agreement.
AH Photography owns all proprietary rights in and to the copyrightable and/or copyrighted works as described in the order, incorporated herein by reference, and hereinafter collectively known as the “Photographs”, and has the exclusive right to license to others the right to produce, copy, make, sublicense or sell the Photographs.
AH Photography owns all rights in and to the Photographs and retains all rights to the Photographs, which are not transferred herein.
1. Grant of License.
AH Photography hereby grants to the Customer, in accordance with the terms and conditions of this Agreement, a personal, non-exclusive, non-transferrable license to use the photographs in accordance with the order.
This license is limited. However, AH Photography shall have the right, at its sole option, to terminate this Agreement, without notice, if the Customer were to violate any provision of this Agreement.
2. Ownership of the Photographs.
The Customer acknowledges that AH Photography is the sole and exclusive owner of the Photographs and of all associated intellectual property registrations and pending registrations, as applicable, and the Customer shall do nothing inconsistent with such ownership. The Customer further agrees that it will not claim any ownership right to the Photographs, or any derivative, compilation, sequel or series, or related Photographs owned by AH Photography.
The Customer agrees that nothing in this Agreement shall give the Customer any right, title, or interest in the Photographs other than the right to use the same in accordance with the terms of this Agreement. The Customer agrees not to make derivative work based on the Photographs. The Customer admits the validity of all copyrights for the Photographs and all associated intellectual property registrations, and acknowledges that any and all rights that might be acquired by the Customer because of its use of the Photographs shall inure to the sole benefit of AH Photography.
3. Fees.
The Customer agrees to pay AH Photography a one-time royalty in accordance with the conditions of the order. Extensions or modifications of this Agreement are subject to fees adjustments, to be agreed upon by the Parties prior to extensions or modifications.
4. Use of the Photographs.
(a) AH Photography shall have control over the quality of use of the Photographs and the quality of any goods and/or services sold under or related to the Photographs.
For all advertisements and packaging use, the Customer shall display with the Photographs an approved notice notifying the public of the copyright and/or trademark rights owned by and licensed within this Agreement.
The Customer agrees to mark all Photographs with any reasonable copyright and/or trademark notices provided by AH Photography and comply with any reasonable standards promulgated by AH Photography that relate to the intellectual property protection and use of the Photographs by the Customer.
(b) The Customer shall provide AH Photography, upon AH Photography’s request, with representative samples of how the Customer is using the Photographs. If, at any time, any use of the Photographs fails to conform to AH Photography’s standards, AH Photography may provide to the Customer notice of said failure. The Customer shall cure said failure within fifteen (15) days from the date of such notice. In the event that said failure is not cured within the said period, AH Photography may then terminate this Agreement immediately, non-conforming copies of the Photographs shall be destroyed or promptly submitted to AH Photography.
If AH Photography fails to approve any modifications or changes to the Photographs within fifteen (15) days of the Customer’s submittal, AH Photography’s approval shall be deemed to have been granted.
5. Restricted use
Any unauthorized use, in any event, shall trigger the payment by the Customer of minimum liquidated damages equal to three hundred percent (300%) of the rate of the authorized licensed use, with a minimum of one hundred and twenty-five dollars ($125 USD), without prejudice of AH Photography’s right to establish a greater damage.
The following uses are not permitted under the license granted:
• use of Photographs in a product intended for sale, which they constitute the primary value, such as postcards, calendars, books and posters;
• trim Photographs, extracting an item, use partially or editing;
• copy or distribute copies of the Photographs;
• resell, donate, sublicense, give, lend, rent, or distribute all or part of Photographs regardless of its format and its definition;
• use Photographs in a context that could be pornographic, political, defamatory, immoral, offensive or demeaning;
• use Photographs as part of a trademark, design-mark, trade name, business name, service mark, or logo.
6. Indemnification and Limitation of Liability
(a) The Customer shall fully indemnify, defend, and hold harmless AH Photography from and against any and all claims, losses, damages, expenses, and liability (other than those for infringement), including without limitation, suits arising from offering, promoting, advertising, sale, or use by the Customer, or any of its authorized sub-licenses, of the Photographs, whether or not such use conforms to standards set by AH Photography, provided that such claim, loss, damage, expense, or liability does not arise from the negligence of AH Photography.
(b) AH Photography has the right, but shall not be obligated, to obtain and maintain federal intellectual property registration of the Photographs. In the event that the Customer becomes aware of any claimed or alleged infringement of the Photographs by a third party, the Customer shall promptly advise AH Photography in writing of the nature and extent of such infringement or dilution. AH Photography has no obligation to take any action whatsoever in the event that any infringement or dilution occurs with respect to the Photographs, but AH Photography shall have the sole right to determine whether any action shall be taken. In the event AH Photography sues or takes other action, legal, equitable, administrative, or otherwise, to stop an infringement or dilution of the Photographs, the Customer shall cooperate fully with AH Photography. The Customer has no right to enforce the Photographs’ rights through litigation without prior written authorization of AH Photography. In any legal action arising from use, or ownership rights of the Photographs, where both AH Photography and the Customer are co-parties, AH Photography retains the right to control the litigation, including any and all settlement negotiations.
(c) IN NO EVENT SHALL AH PHOTOGRAPHY OR ANY OF ITS AFFILIATES OR PHOTOGRAPHS PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE PHOTOGRAPHS, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF YOU MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION FIRST AROSE.
(d) NOTWITHSTANDING ANY OTHER TERM HEREIN, AH PHOTOGRAPHY SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFICATIONS MADE TO THE PHOTOGRAPHS BY YOU.
(e) NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF AH PHOTOGRAPHY UNDER THIS AGREEMENT AND ANY OTHER AGREEMENT UNDER WHICH YOU HAVE LICENSED THE SAME PHOTOGRAPHS, REGARDLESS OF THE FILE SIZE, OR THE USE OR EXPLOITATION OF ANY OR ALL OF THE PHOTOGRAPHS IN ANY MANNER WHATSOEVER AND THE OBLIGATION OF AH PHOTOGRAPHY SHALL BE LIMITED TO THE AGGREGATE AMOUNT PAID BY THE CUSTOMER FOR THE PHOTOGRAPHS UPON WHICH SUCH LIABILITY CLAIM IS BASED.
7. Severability
Any provision of this Agreement, which is or becomes unenforceable in any jurisdiction, whether due to being void, invalidity, illegality, unlawfulness or for any reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as void and the remaining provisions of any relevant terms and conditions, policies and notices shall remain in full force and effect.
8. Applicable laws (choice of venue and forum)
The transaction with respect to the license which is the subject of this online sale shall be governed by and interpreted and constructed in accordance with the laws of the State of New York, and any action arising out of such transaction shall be brought exclusively in courts seated in Dutchess County, New York or the Federal District Court, Poughkeepsie, New York, and Customer’s agreement to such exclusive jurisdiction and venue is a condition of the Agreement.
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