VisualLiving.com End-User Image License Agreement

This is a legal agreement ("Agreement") between you as licensee (you or your) and Visual Living, LLC, a New York Limited Liability Company, as licensor (VisualLiving.com).  By downloading or using in any way and in any format, any images and/or digital files from the VisualLiving.com website (Digital Content), you agree to be bound by the terms of this Agreement. If you do not agree, click on your browser's Back button on the website to decline this Agreement.

1.0 Limited License

1.1    Conditioned upon your compliance with all the terms of this Agreement  (including all restrictions), VisualLiving.com grants to you a non-exclusive, non-transferable license to use and reproduce Digital Content from the VisualLiving.com website under the following terms and conditions:

A.   You may reproduce the Digital Content, for any lawful purposes, in any commercial or non-commercial project, in any form, and in any format (including in any digital and/or analog formats), so long as you provide the credit notice provided in Section 3.3 below.  

B.   You must always provide the credit notice provided in Section 3.3 below, unless you incorporate the Digital Content within a new visual design or use the Digital Content for non-commercial editorial purposes. 

C.   If you incorporate or use the Digital Content as part of a webpage or website, you agree to take steps, including utilizing encryption devices, to prevent others from illegal or unauthorized copying of the Digital Content. 

D.   You may not, under any circumstances, use the Digital Content in any of the following ways:

a.    for any unlawful purpose or use;

b.    for any pornographic use;

c.    as a trademark or service mark;

d.    to defame or disparage any person or product;

e.    to violate any person's right of privacy or publicity;

f.    to infringe upon any copyright, trade name, trademark, or service mark of any person/entity; or

g.    in sensitive subjects and/or topics that may depict or subject the subject matter or model within any Digital Content to ridicule or in a negative or unfavorable light , including, but not limited to sexual issues, substance abuse, physical or mental abuse, alcohol, drugs, tobacco, AIDS, cancer, or serious physical or mental ailments, or the disparagement of a person or product.

E.    "Non-transferable" as used herein, means that the work you produce using the Digital Content must be for your own use, or if purchased on behalf of your employer or client, your employer or client must be the end-user of your work. You may not sell, rent, loan, give, sublicense, or otherwise transfer to anyone an Image, or the right to use the Digital Content and nothing you produce shall grant or purport to grant to any third party a right to use or duplicate the Digital Content.  You may allow the Digital Content to be reproduced by subcontractors, provided such contractors agree to abide by the restrictions of this Agreement.  You agree to take all commercially reasonable steps to otherwise prevent third parties from duplicating or distributing the Digital Content.

F.    This Agreement shall apply to any uses of the Digital Content, including any images contained therein or any portion thereof, whether in the original digital format or reformatted in any other formats, including other digital formats or analog formats now or hereafter known.

1.2    Illustrative Examples of Allowed and Prohibited Uses.

A.   Allowed uses include the following:

a.    You may use the Digital Content within a magazine article for editorial purposes without including the Section 3.3 credit notice.  

b.    You may use the Digital Content to create a silkscreen image (consisting solely of the image contained in the Digital Content) for print on a T-shirt that you sell, so long as you provide the Section 3.3 credit notice in the appropriate location on the T-shirt.  

B.   Prohibited uses include the following:

a.    You may not place the Digital Content on a website for downloading, sale, license and/or reproduction. 

b.    You may not sell framed prints created from the Digital Content, that do not contain the Section 3.3 credit notice.   

c.    You may not use the Digital Content for editorial purposes in an article about sexual issues. 

2.0 Restrictions, Limitations of Liability, Indemnification and Limited Warranty.

2.1    You shall indemnify and defend VisualLiving.com and its Digital Content providers and artists against all claims, liability, damages, costs and expenses, including reasonable legal fees and expenses, arising out of or related to (i) a breach of this Agreement, (ii) the use or modification of any Digital Content or combination of any Digital Content with any other material, (iii) your failure to abide by any restriction regarding the use of Digital Content, or (iv) any claim by a third party related to the use of Digital Content, alone or in combination with any other material.

2.2  VisualLiving.com attempts to keep model releases for Digital Content on file, but makes no warranties that such releases have been obtained or that the information contained upon such releases is current or valid.

2.3  VisualLiving.com grants no rights and makes no warranties with regard to the use of names, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture, or persons or models depicted in any Digital Content, and you should satisfy yourself that all the necessary rights or consents regarding any of the above, as may be required for reproduction, have been obtained. 

2.4  VisualLiving.com may at any time during the term of this Agreement notify you that certain Digital Content are no longer available for use under this Agreement and upon such notification, the license granted herein by VisualLiving.com shall automatically and immediately terminate.  VisualLiving.com warrants that the digital copy of the Digital Content provided by VisualLiving.com to you will be free from defects in material and workmanship (but not visual artifacts inherent in the original image) for thirty (30) days following delivery via this site.  Your sole remedy for any recalled Digital Content or inability to use the Digital Content, shall be, at VisualLiving.com' s sole discretion, the replacement of such recalled Digital Content with other Digital Content or refund of any fee paid to VisualLiving.com attributable to such recalled Digital Content. VisualLiving.com cannot anticipate all possible uses of Digital Content, either alone or in combination with other material that you, or you on behalf of your client(s), may make. You are solely responsible for the use of any Digital Content in combination with any other material. 

2.5  VisualLiving.com makes no warranties nor shall VisualLiving.com be liable for any Digital Content which: (a) has been modified by you, (b) has been combined by you with other images, products, content or materials, or (c) VisualLiving.com has previously notified you not to license or otherwise use.

2.6  Neither VisualLiving.com nor any of its directors, officers, employees, partners, licensors, or agents shall be liable for any indirect, consequential punitive, or incidental damages arising out of the use of, or the inability to use, the VisualLiving.com website and/or Digital Content, even if VisualLiving.com has been advised of the possibility of such damages.

2.7  EXCEPT AS PROVIDED IN THIS SECTION, VISUALLIVING.COM MAKES NO WARRANTIES (EXPRESS OR IMPLIED) WITH RESPECT TO DIGITAL CONTENT OR TO VISUALLIVING.COM' S PERFORMANCE OF ITS OBLIGATIONS. VISUALLIVING.COM DOES NOT WARRANT THAT CAPTION INFORMATION IS ACCURATE. VISUALLIVING.COM MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED REGARDING ANY DIGITAL CONTENT, OR ANY RIGHTS OR LICENSES UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, THAT THE DIGITAL CONTENT IS ERROR FREE, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.

2.8  Whenever possible you shall provide VisualLiving.com with information regarding your use of the Digital Content.  You also agree to immediately notify VisualLiving.com whenever your usage possibly violates the terms of this Agreement or if you become aware that a third party has used the Digital Content in violation of the terms of this Agreement. 

3.0 Copyright/Notices

3.1    All Digital Content is protected by the intellectual property laws of the United States and the Berne Convention. 

3.2  The Digital Content is licensed, not sold, and all other rights not licensed herein remain the property of VisualLiving.com, the Digital Content provider and/or copyright holder.  You agree that you will not attempt to claim intellectual property rights over Digital Content. 

3.3  Unless, otherwise specifically provided herein, each use of Digital Content must bear the credit line [Artist's name] for VisualLiving.com.

4.0 Term and Termination

4.1    This Agreement in force until it is terminated.

4.2    If you do not comply with the terms and conditions of this Agreement, this Agreement and all licenses granted herein automatically terminate.

4.3    Sections 1.1.D., 2.1, 2.3. 2.5-2.8, 3.1-3.3 and 5.1 shall survive termination of this Agreement. 

5.0 Miscellaneous

5.1    This Agreement shall be governed by the laws of the State of New York, excluding its conflict of law rules. You agree that venue for any action respecting this Agreement or use of any Digital Content, shall be in the state and federal courts sitting in Albany County, New York and you hereby consent to the jurisdiction of such courts.

5.2    Nothing in this Agreement creates a partnership, employer-employee relationship or joint venture between the parties. 

5.3    This Agreement may not be assigned or modified, without VisualLiving.com's written consent.