- Representations and Warranties
- Term and Termination
- Effects of Termination
THIS IS AN IMPORTANT DOCUMENT, AND IT CONTAINS MANY IMPORTANT PROVISIONS THAT AFFECT YOUR RIGHTS AND OBLIGATIONS. BY CHECKING THE CORRECT BOX OF THIS EXCLUSIVITY AGREEMENT (THIS “AGREEMENT”), YOU HEREBY AGREE TO BE BOUND BY THIS AGREEMENT. WE ENCOURAGE YOU TO PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
Total Exclusivity is a status for contributors who upload and offer their Royalty Free Works only on the Fotolia.com Website.
This Total Exclusivity status means that no Work from this contributor is offered for free or for sale on another royalty free stock photography website or on the artist’s own website.
All the contributor’s Works must be exclusively offered for sale or for free on the Fotolia.com Website.
If one or more Works are offered on Fotolia in a non-exclusive manner (ie also offered on other websites or agencies), the contributor is not eligible for the Total Exclusivity status.
To be eligible for the Total Exclusivity status, the contributor must first remove all his or her Works from all other websites or agencies where the Works are available for sale or download.
Total Exclusivity status may be set up in the member profile section of the Contributor's account or during the indexing of his or her Works.
A Total Exclusive Contributor benefits from higher commissions on each sale (the “Exclusive Commissions”), he or she also benefits from the ability to raise his or her Works sales price, in accordance with Fotolia’s Standard pricing and payment policies.
THE TOTAL EXCLUSIVE CONTRIBUTOR CAN NOT SELL OR OFFER FOR FREE ON ANOTHER WEBSITE HIS OR HER WORKS, INCLUDING, WITHOUT LIMITATION, WORKS THAT HAVE NEVER BEEN SUBMITTED ON FOTOLIA, WORKS THAT HAVE BEEN REFUSED BY FOTOLIA, AND WORKS TYPES THAT ARE NOT OFFERED FOR SALE OR FOR FREE ON FOTOLIA.
Subject to the terms and conditions of this Agreement, The Total Exclusive Contributor shall keep the right:
- to sell his or her Works as Rights-managed Works, by himself (herself) or through a Rights-managed company
- To sell his or her Works through his or her personal portfolio website. In such case, the website shall not offer for free or for sale other author’s Works
- To sell his or her Works directly to the end user in accordance with an assignment contract
- To sell his or her Works directly to the end user in accordance with an editorial contract
- To sell prints of his or her Works
- To print and sell derivative products, including, without limitation, posters, t-shirts, clothing, decorations and the like, whether by himself (herself) or through a dedicated website. In such case, the website must not offer for free or for sale royalty free creative Works.
In addition to the representations and warranties you have made above, each of Fotolia and you hereby represent and warrant that it, or he or she, has the right to enter into this Agreement.
This Agreement shall continue in perpetuity unless terminated in accordance with this Section 6. Fotolia at any time and without prior notice may terminate this Agreement in its sole discretion, including, without limitation, for breach by you of any of your representations, warranties or obligations under this Agreement.
The Full Exclusive Contributor may at any time terminate this Agreement by updating his or her exclusivity conditions in his or her Profile or by uploading non-exclusive Works on the Fotolia.com Website.
Upon any termination of this Agreement:
- The Contributor loses his or her Full Exclusivity benefits;
- All his or her commissions on all his or her Works become non-exclusive.
If the termination is the result of a breach by you of any of your representations, warranties or obligations under this Agreement, Fotolia reserves the right, in its sole discretion, and without limitation of any action Fotolia may take, to deduct directly from the Contributor’s account the credits unduly earned by the Contributor during his or her breach. Fotolia reserves the right to terminate the Total Exclusive Contributor's account if the contributor is determined to be a repeat infringer. A repeat infringer is a Contributor who has been notified of infringing activity regarding the exclusivity conditions more than twice and/or has had Works removed from the Website due to exclusivity problems more than twice.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to any conflict of laws principles. Any legal action, suit or proceeding arising out of or relating to this Agreement shall be instituted in a court of competent subject matter jurisdiction in the federal or state courts of the State of New York, and you and Fotolia each submit to the personal jurisdiction of such court and waive any right each might otherwise have to claim lack of personal jurisdiction or inconvenience of forum.
The failure of Fotolia to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement shall remain in full force and effect.
Notwithstanding any provision hereof, for all purposes of this Agreement, you and Fotolia shall be and act independently and not as partner, joint venture, agent, employee or employer of the other. You shall not have any authority to assume or create any obligation for or on behalf of Fotolia, express or implied, and you shall not attempt to bind Fotolia to any contract.
Fotolia shall have the right, in its sole discretion, to assign any or all of its rights or obligations hereunder. You shall have no right to assign any of your rights or obligation hereunder.
This Agreement shall be inure to the benefit of, and be binding upon, Fotolia and you, and its and your respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer upon any person or entity, other than Fotolia and you, and its and your respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
Whenever the context so requires, the singular number shall include the plural and vice versa, and the masculine, feminine and neutral genders shall include each other.
If any term or provision of this Agreement is invalid, illegal or unenforceable, all other terms and conditions of this Agreement shall nevertheless remain in full force and effect.
The underlined headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.