Terms and Conditions of Service
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THIS WEB SITE.
This website imagerights.com (the "Site") is owned and operated by ImageRights International, Inc., a Delaware corporation ("ImageRights" or "we" or "us").
ImageRights provides the "ImageRights Services" (as described below) solely in connection with and subject to the following Terms and Conditions of Service, which shall include any posted applicable guidelines or rules governing the Site (as defined below), and all of which may be modified by us, in our sole discretion, from time to time as set forth in paragraph 16 below (individually and collectively, "Terms of Service" or "TOS").
By accessing this Site and using the ImageRights Services, you, as a Customer (as defined below), are accepting and agreeing to be bound by all of these Terms of Service. If you do not agree to these Terms of Service, you may not use this Site or any of our services.
In addition to accepting and agreeing to be bound by these Terms of Service, Customers that register to ImageRights Services explicitly agree to be bound by the terms and conditions of the Recovery Service Agreement, which may be modified by us, in our sole discretion. A copy of the Recovery Service Agreement may be viewed at https://www.imagerights.com/service-agreement
1. Overview of ImageRights Services
This Site and the Content (as defined below) are intended for the use of Customers ("Customers" or "Subscribers" or “You”) to the ImageRights Service.
The ImageRights Services employ a multitude of image search, fingerprinting and matching algorithms and technologies to identify and report uses of Customer’s images (“Sightings”) previously uploaded to their account on our Site.
When the ImageRights Services report a Sighting to the Customer, the Customer reviews the report to determine if the Sighting is an authorized use. If the Customer determines that the use is unauthorized (“Claim”), the Customer must submit the Claim to ImageRights for assessment pursuant to the Recovery Service Agreement, which, among other things, authorizes ImageRights to act as the Customer's representative in seeking a fee from the alleged unauthorized user of the work (“Infringer”) in exchange for a release from liability for the Claim (“Release”).
If ImageRights is unable to execute a Release with the Infringer and such resolution seems unlikely, ImageRights will notify the Customer regarding additional courses of action, including referral to and/or the engagement of legal counsel for the possible initiation of litigation or other legal action.
ImageRights reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the ImageRights Services (or any portion thereof) with or without notice. You agree that ImageRights shall not be liable to you or to any third party for any modification, suspension or termination of the ImageRights Services (or any portion thereof). You may not use this Site or the Content contained herein for any purpose not expressly permitted herein.
When using or registering to use the ImageRights Services and as a condition thereto, you represent that you are of legal age to form a binding contract and are not a person barred, as a matter of law or otherwise, from using or receiving ImageRights Services.
When registering as a Customer, you agree to provide true, accurate, current and complete information about yourself as prompted by the ImageRights Customer account registration form (collectively, the "Registration Data"); and you will maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information, or if ImageRights has reasonable grounds to suspect that the information is untrue, inaccurate, not current or incomplete, ImageRights has the unilateral right to suspend or terminate your account and/or your Recovery Service Agreement (if any) and refuse to allow you to utilize any of ImageRights Services or any portion thereof.
Upon completion of the registration process, you will receive a log-in (or account) designation and password, which you may use in connection with obtaining ImageRights Services so long as you are in compliance with these Terms of Service. You are responsible for maintaining the confidentiality of the password and log-in account identifier and are fully responsible for all activities that occur under your log-in (account). You accept full responsibility for all transactions and other activity placed or conducted through your account and agree to and do hereby release ImageRights from any and all liability concerning such transactions or activity. You agree to notify ImageRights immediately of any actual or suspected loss, theft or unauthorized use of your account or password. ImageRights has no obligation to inquire as to the authority or propriety of any use of or action taken under your password and will not be responsible for any loss to you arising from any such use or action or from your failure to comply with the above. ImageRights expressly disclaims any and all liability for the unauthorized access to any Content you have uploaded to the Site, the interception of any Content, data or communications by unauthorized persons or entities or any unauthorized modification made by any person to your log-in account or Registration Data.
In consideration for your use of the ImageRights Services hereunder, you agree to pay all charges billed to you including applicable taxes, in accordance with ImageRights' billing plan and policies in effect at the time the charge becomes payable. You acknowledge that you may be charged a monthly or annual subscription fee, even if you do not use or access the ImageRights Services. We reserve the right to change the billing plan, policies and the subscription fees for the ImageRights Service at any time, upon prior notice to you. If you fail to pay the charges for the ImageRights Services when due, we reserve the right to pursue any and all legal and equitable remedies to collect the amounts owed by you and the right to suspend or terminate your subscription to the ImageRights Services.
You hereby authorize ImageRights to charge your personal checking or savings account, Paypal account, or credit card, which you provide us as part of your registration process for your service fee. You guarantee and warrant that you are the legal account holder or credit card holder. If you elect a monthly subscription, you agree that this monthly charge will be made on a 30-day cycle. If you elect an annual subscription, you agree that this annual charge will be made on a one-year cycle. In order to terminate the recurring billing process you must either cancel your account, or arrange for an alternative method of payment accepted by us. You understand that ImageRights may not mail you any invoices or bills.
You understand that all account cancellations for which an active recurring billing authorization exists must be made in writing by email sent by the authorized primary contact or web administrator for the account to firstname.lastname@example.org.
- not to dispute ImageRights' recurring billing with your bank or credit card issuer as long as the amount in question was for services rendered prior to cancellation of the account,
- you will not dispute any charges from ImageRights unless you have already made an effort in good faith to rectify the situation directly with ImageRights, and those efforts have failed, and
- that any credits issued by ImageRights for any reason will not be refunded to your account or credit card, but instead will be deducted from your following month's service fee.
You authorize ImageRights to run an address verification search. This verification process is a security measure designed to protect you from illegal fraud against your account and credit card.
You understand that all images, information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials ("Content") are the sole responsibility of the person from whom such Content originated. This means that you and every other Customer, and not ImageRights, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available when using ImageRights Services. ImageRights does not control the Content uploaded to and stored on our database and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will ImageRights be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available through ImageRights Services.
By using the ImageRights Services and/or uploading, posting, emailing, transmitting or otherwise making Content available using the ImageRights Services, You represent and warrant that you are the copyright owner or the exclusive licensee to one or more rights contained in 17 U.S.C. § 106, or the authorized representative of the copyright owner or the exclusive licensee to one or more rights contained in 17 U.S.C. § 106, in and to any and all Content that is provided by you or on your behalf. You further represent and warrant that you are solely responsible for the form, content and accuracy of any Content you have uploaded. Under no circumstances shall any Content:
- violate, infringe or otherwise interfere with any copyright, trademark or other intellectual property right of another party;
- reveal any confidential or proprietary information or trade secret, unless you own the confidential or proprietary information or trade secret or have the owner's express written permission to post it;
- infringe on any intellectual property right of another or on the privacy or publicity rights of another;
- be false or misleading or promote, endorse or in any way further illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
- contain a virus, trojan horse, worm, time bomb or other computer programming routine or engine that is intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information, or
- remain posted after you have been notified that such image violates any of sections (i) to (v) of this paragraph.
With respect to all Content uploaded by You or on your behalf, and the actions and inactions made by You or on Your behalf, in addition to any other indemnifications set forth herein, You agree to defend, indemnify and hold harmless ImageRights and its directors, shareholders, subsidiaries, affiliates, officers, agents, employees, partners and licensors, from and against any and all claims, damages, losses, liabilities, expenses (including all attorneys' fees incurred), costs and all other liabilities (whether special, consequential or direct or indirect) incurred by ImageRights with respect to any claim (whether valid or invalid) that:
- Content uploaded to ImageRights by You or on our behalf violates any rights of any person or entity; and
- You did not have the right to upload said Content or grant the rights granted to ImageRights herein; and
- You have failed to comply with the provisions of these Terms of Service.
ImageRights does not claim ownership of Content You submit or make available for inclusion in our database or in connection with ImageRights Services. ImageRights shall not publish your uploaded Content for viewing by third parties or the public. However, You grant ImageRights the worldwide, irrevocable, royalty-free and non-exclusive, non-terminable license, to cache, copy, display (original and lower resolution and thumbnails), map, fingerprint, publish, reproduce, create derivative works, translate and store (in multiple formats) your uploaded Content for the purposes provided herein and You represent and warrant that You have the full power and authority to grant to ImageRights these rights. This license exists only for as long as such Content is maintained on the Site as provided herein and will terminate at the time you remove or ImageRights removes such Content from the Site.
Notwithstanding the foregoing, your uploaded Content may be displayed to the public in the limited circumstance that it is selected for use in an ImageRights marketing campaign, in which case ImageRights will obtain your prior written consent to publication.
5. Your Understandings, Acknowledgements and Agreements
You understand, acknowledge and agree that:
- ImageRights may provide You or display advertisements and other communications such as notifications of changes in ImageRights Services, administrative matters as well as other communications and that you may not opt out from receiving.
- ImageRights Services are provided "AS-IS" and that ImageRights assumes no responsibility or any liability for the timeliness or accuracy of our image storage or recognition systems or the deletion, mis-delivery or failure to store or recognize and match any Customer's images with images found on the Internet. You are responsible for obtaining access to this Site and the ImageRights Services and that access may involve third-party fees (such as an internet service provider or airtime charges). You are responsible for those fees and all equipment you may need to access the Site and utilize the ImageRights Services.
- Technical processing, storage, display and transmission of Content including your images or other Content may involve transmission over various networks and changes to conform which may be subject to interception or might be modified to meet the technical requirements of transmission, connectivity, fingerprinting, analysis and storage.
- ImageRights may access, preserve and disclose your account information, Registration Data and Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to:
- comply with legal process;
- enforce the Terms of Service and/or Recovery Service Agreement (if any);
- respond to claims that any Content violates the rights of third parties;
- discuss with your attorney(s) and/or any attorney(s) engaged directly by ImageRights on your behalf any matters related to the Content, including but not limited to (i) the initiation of such litigation or other legal action; (ii) the identity of the Recovery Asset(s) involved in litigation or other legal action; (iii) any settlement, judgment or other resolution;
- respond to your requests for customer service; or
- protect the rights, property or personal safety of ImageRights, its Customers and the public.
- ImageRights Services and software embodied within the ImageRights Services may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by ImageRights and/or other providers who provide services, software or Content to ImageRights. You may not attempt to override or circumvent any of the usage rules utilized by ImageRights. Any unauthorized reproduction, publication, distribution or public exhibition of the Content accessed through this Site, in whole or in part, is strictly prohibited.
- ImageRights may or may not pre-screen Content, but ImageRights and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Content that is uploaded to the Site. Without limiting the foregoing, ImageRights and its designees shall have the right to remove any Content that violates the Terms of Service or is otherwise objectionable, as determined by ImageRights in its sole discretion. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, You acknowledge that You may not rely on any Content created by ImageRights.
You further agree and understand that to utilize portions of the ImageRights Services, You will be asked to sign the Recovery Service Agreement, copy of which may be obtained by emailing email@example.com.
6. Subscriber and User Obligations
You agree you will not use ImageRights Services or the Site to:
- harm children, minors or adults in any way;
- impersonate any person or entity, including, but not limited to, an ImageRights' employee, representative, or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through ImageRights Services;
- upload, post, email, transmit or otherwise make available or communicate any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (including proprietary or confidential information belonging to others);
- upload, post, email, transmit or otherwise make available or communicate any Content that infringes any patent, trademark, trade secret, copyright or other intellectual property or proprietary rights ("Rights") of any other person or entity;
- upload, post, email, transmit or otherwise make available or communicate any Content that is unlawful, threatening, menacing, abusive, harmful, invasive of another's privacy or publicity rights, defamatory, libelous, illegal, hateful, or racially, ethnically or otherwise objectionable including without limitation Content that violates child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct;
- upload, post, email, transmit or otherwise make available or communicate any Content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- interfere with or disrupt the Site, ImageRights Services or servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site, including using any device, software or routine to bypass our robot exclusion headers; and
- intentionally or unintentionally violate any applicable local, state, national or international law or any regulations having the force of law.
By registering and uploading images or other Content, you are warranting and representing that:
- you have the right to enter into and be bound by these Terms of Service;
- you are the copyright owner or the exclusive licensee to one or more rights contained in 17 U.S.C. § 106 in and to the Content or that the copyright owner or the exclusive licensee to one or more rights contained in 17 U.S.C. § 106 has granted you the rights permitted for you to accept and be bound by these Terms of Service;
- the Content does not: (i) infringe or violate the intellectual property rights of any third party, including without limitation any copyright, trademark, service mark, trade secret, trade dress, publicity or privacy right; (ii) contain any material that, is tortious, defamatory, slanderous, libelous, or promotes bigotry, racism, hatred or harm against any individual or group; or (iii) contain material that is otherwise illegal in your jurisdiction;
- you will not: (i) cover or obscure any ImageRights page via HTML/CSS, scripting, or any other means; (ii) interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site; or (iii) introduce software or automated agents to the Site so as to produce multiple accounts, generate automated messages, or to strip or mine data from the Site; and
- all information and documentation that you provide to ImageRights is accurate and complete.
Termination without Cause. You may terminate your use of the ImageRights Services and access to the Site by submitting such termination request to ImageRights; provided, however, that such termination shall not release you from any payment accrued to ImageRights hereunder prior to the effective date of such termination, which payment shall become immediately due and payable.
Termination For Cause. You agree that ImageRights, without prior notice, may immediately terminate or suspend and/or limit your access to the Site and/or ImageRights Services for good cause. Good cause for such termination, limitation of access or suspension shall include, but not be limited to,
- breaches or violations of the Terms of Service or other incorporated agreements or guidelines;
- requests by law enforcement or other government agencies;
- discontinuance or material modification to the ImageRights Services (or any part thereof);
- unexpected technical or security issues or problems;
- extended periods of inactivity; and/or
- any fraudulent or illegal activities by you.
Further, you agree that all terminations, limitations of access and suspensions for cause shall be made in ImageRights' sole discretion and that ImageRights shall not be liable to you or any third party for any termination of your account, any associated email address, or access to the ImageRights Services.
Effects of Termination. Termination of your ImageRights account includes any or all of the following:
- removal or denial of access to all or part of the offerings within the ImageRights Services,
- deletion of your account, password and all related information, files and Content associated with your account (or any part thereof), and
- barring of further use of all or part of the Site or ImageRights Services.
Termination of your account and limitations on access shall not relieve you of any obligations arising or accruing prior to such termination or limit any liability or obligation you otherwise may have to ImageRights, including all indemnification obligations contained herein, which hereby expressly survive any termination.
9. Interstate Nature of Communications
You acknowledge and agree that using the Site or the ImageRights Services (such as but not limited to emails, search queries, uploading or downloading Content, etc.) involves the use of computers and networks located throughout the United States of America and the world. As a result thereof, the network architecture used and the nature of electronic communications, even communications that appear to be intrastate can result in the transmission of interstate communications regardless of where you are physically located at the time of the transmission. Accordingly, you acknowledge that the use of the Site and ImageRights Services results in interstate data transmissions.
10. Site Operation
ImageRights and its service providers will use reasonable efforts to ensure that the Site and ImageRights Services are available 24 hours a day, 7 days a week. However, from time to time ImageRights may be required to purge the Site of images, during which time we may remove content from the Site in our sole discretion. Additionally, there will be occasions when the Site and/or ImageRights Services will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment. Reasonable steps will be taken by ImageRights to minimize such disruption where it is within ImageRights' reasonable control. YOU AGREE THAT IMAGERIGHTS WILL NOT BE LIABLE IN ANY EVENT TO YOU OR ANY OTHER PARTY FOR ANY SUSPENSION, MODIFICATION, DISCONTINUANCE OR LACK OF AVAILABILITY OF THE SITE OR IMAGERIGHTS SERVICE(S).
ImageRights makes no claim that the Site may be lawfully viewed or that Content may be downloaded outside of the United States. Access to Content may not be legal by certain persons or in certain countries. If you access the Site from outside the United States, you do so at your own risk and you are responsible for compliance with the laws of your jurisdiction.
All material and content contained on the Site other than uploaded Content and including, but not limited to graphics, images, logos, articles, videos, animations, audio and digital clips, photographs, illustrations, icons, the compilation of all content on the Site, are the property of ImageRights and/or third parties and are protected by United States and international laws. All trademarks, service marks, trade names and all other intellectual property are owned and/or controlled by and are proprietary to ImageRights and/or third parties. No material from the Site other than your posted Content may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way.
You agree to defend, indemnify and hold harmless ImageRights and its directors, shareholders, subsidiaries, affiliates, officers, agents, employees, partners and licensors from and against any and all losses, claims or demands and liabilities, including reasonable attorneys' fees, they may suffer as a result of or which relates to or arises out of any Content you submit, post, transmit, modify or otherwise make available through the Site or through ImageRights Services, your use of the ImageRights Services, your violation of any of the provisions of the Terms of Services, or your violation of any rights of another person or entity.
14. Disclaimers of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SITE AND THE IMAGERIGHTS SERVICES ARE AT YOUR SOLE RISK. THE CONTENT AND IMAGERIGHTS SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. IMAGERIGHTS DOES NOT GUARANTEE, REPRESENT OR WARRANT THAT YOUR USE OF THE IMAGERIGHTS SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. IMAGERIGHTS AND ITS DIRECTORS, SHAREHOLDERS, SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTIES IS AN ESSENTIAL CONDITION OF THE AGREEMENT.
ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE IMAGERIGHTS SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
IMAGERIGHTS SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE IMAGERIGHTS SERVICES, BUT YOU ACKNOWLEDGE AND AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND IMAGERIGHTS HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
THE IMAGERIGHTS SERVICE WILL SEARCH THE INTERNET FOR USES OF YOUR IMAGES. IMAGERIGHTS DOES NOT GUARANTEE, HOWEVER, THAT IT WILL (i) FIND EVERY INSTANCE OF YOUR IMAGES ON THE INTERNET, (ii) SEARCH THE ENTIRE INTERNET OR (iii) SEARCH CONTINUOUSLY. FURTHER, IMAGERIGHTS DOES NOT GUARANTEE THAT ITS RESULTS WILL BE ACCURATE AS THE IMAGERIGHTS SERVICE MAY MISIDENTIFY A WORK AS A SIGHTING OF THE CONTENT WHEN, IN FACT, IT IS NOT, i.e., A FALSE POSITIVE. IN THE EVENT THAT IMAGERIGHTS IDENTIFIES WHAT IT BELIEVES MAY BE A SIGHTING OF THE CONTENT, IMAGERIGHTS MAY NOTIFY YOU BY PROVIDING A REPORT OF THE SIGHTING. IMAGERIGHTS, HOWEVER, IS UNDER NO OBLIGATION TO PROVIDE SUCH A REPORT AND, FURTHER, IF A REPORT IS SENT, IMAGERIGHTS MAKES NO GUARANTEE THAT IT WILL SEND SUCH A REPORT WITHIN ANY PARTICULAR TIMEFRAME. IMAGERIGHTS HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO ITS SEARCHING OR REPORTING ACTIVITIES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE OR THROUGH OR FROM THE IMAGERIGHTS SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF SERVICE.
15. Limitation of Liability
- YOU EXPRESSLY UNDERSTAND AND AGREE THAT IMAGERIGHTS AND ITS DIRECTORS, SHAREHOLDERS, SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF IMAGERIGHTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM:
- THE USE OR THE INABILITY TO USE THE IMAGERIGHTS SERVICE;
- THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES;
- UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR
- ANY OTHER MATTER RELATING TO THE IMAGERIGHTS SERVICE.
- YOU EXPRESSLY UNDERSTAND AND AGREE THAT IMAGERIGHTS AND ITS DIRECTORS, SHAREHOLDERS, SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR DAMAGES OF ANY KIND IN EXCESS OF THE FEES RECEIVED BY IMAGERIGHTS FOR THE SERVICES PROVIDED TO YOU.
- SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 15 AND 16 HEREIN MAY NOT APPLY TO YOU.
16. Modifications of the Terms of Service
ImageRights may modify these Terms of Service, at any time and in its sole discretion, by posting the modified Terms of Service or other rules and guidelines on the Site. The modifications shall be effective upon such posting (unless some other date is specified in the posting, in which case that date shall be deemed the effective date for the modifications). You agree to review these Terms of Service periodically so that you are aware of any modifications. Your use of the Site indicates your full acceptance of the Terms of Service in their then-current form each time you use the Site. You agree that the notice provisions provided in these Terms of Service are reasonable. You may not modify these Terms of Service or any of the rules or guidelines governing the Site.
From time to time, the Site may offer certain services (directly or in conjunction with third parties) that require you to agree to additional terms and conditions ("Supplemental Terms of Service"). In such an event, the Site may either:
- present such Supplemental Terms of Service to you for approval through a "click wrap" approval; or
- post such Supplemental Terms of Service on the Site.
In either case, the Supplemental Terms of Service will be deemed to be an integral part of these Terms of Service and your use of such services will be deemed as acceptance and agreement to the Supplemental Terms of Service.
17. Third Party Websites
Users of the Site may gain access from the Site to third party sites on the Internet through hypertext or other computer links on the Site. Third party sites are not within the supervision or control of ImageRights. Unless explicitly otherwise provided, ImageRights does not:
- make any representation or warranty whatsoever about any third party site that is linked to the Site; or
- endorse the products or services offered on such third party site.
ImageRights expressly disclaims:
- all responsibility and liability for content on third party websites and
- any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you hereby irrevocably waive any claim against ImageRights with respect to such sites and third party content.
These Terms of Service constitute the entire agreement and understandings by the parties relating to the subject matter hereof and supersedes all prior agreements, proposals or understandings between the parties regarding such subject matter. Further, each party shall comply with all applicable federal, state and local laws and regulations in the performance of its obligations under these Terms of Service. The recitals above are true and correct and are part of these Terms of Service. Any controversy, claim or dispute between the parties arising out of or relating to these Terms of Service, or any default hereof, that cannot be resolved through mutual negotiations shall be finally determined by arbitration to be held in Orange County, California, before one neutral arbitrator, knowledgeable in the subject matter. The arbitration shall be administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures then in effect (the "Rules"). The arbitration award shall be in writing and shall include a statement of findings of fact and conclusions of law for the award. The arbitration award may not grant any relief that may not be granted under California law. Judgment on the award may be entered in any court of competent jurisdiction. The prevailing party in any arbitration, action, suit, or proceeding arising out of or relating to these Terms of Service shall be entitled to all costs incurred, including, but not limited to, all costs of the arbitration and other costs and expenses (including, but not limited to, attorneys’ fees and expenses). Such arbitrator shall determine which party is the prevailing party, whether or not such dispute proceeds to final adjudication. EACH PARTY HEREBY WAIVES ANY RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING RELATED TO THIS AGREEMENT OR TO THE ENGAGEMENT, PERFORMANCES OR APPEARANCES CONTEMPLATED HEREBY, REGARDLESS OF WHICH PARTY INITIATES ANY SUCH ACTION OR PROCEEDING. Nothing in this paragraph or the Rules shall be deemed to limit the ImageRights’ right to obtain the injunctive relief. The rights and obligations set forth herein may not be assigned, in whole or part, by the Customer without the prior written consent of ImageRights. All waivers must be in writing and executed by the waiving party. The failure by a party to enforce any provision hereof shall not be construed as a waiver of such provision. All notices given hereunder shall be in writing and delivered by email to the last email address provided by the Customer to ImageRights at firstname.lastname@example.org. All provisions contained in the Terms of Service are severable, and in the event any of them shall be held to be invalid by any competent court, these Terms of Service shall be interpreted as if such invalid provisions were not contained in the Terms of Service. Headings used in these Terms and Conditions are for convenience only and have no legal or contractual significance.
19. Copyright Infringement Claims
ImageRights has adopted the following policy toward copyright infringement with respect to the Site in accordance with the Digital Millennium Copyright Act ("DMCA"), a copy of which is located at http://lcweb.loc.gov/copyright/legislation/dmca.pdf
Copyright Policy. It is ImageRights' policy to comply with the DMCA and any equivalent law in other countries where the Site and ImageRights Services are made accessible. ImageRights shall:
- block access to, or remove material that it believes in good faith infringes copyright of a third party; and
- remove and discontinue service to repeat infringers.
Copyright Notice. Copyright owners or any agents thereof who believe that any Content infringes upon their copyrights may submit a notification pursuant to the DMCA by providing our Copyright Agent with the following information in writing (please consult your legal counsel or see 17 U.S.C § 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Such written notice should be sent to:
ImageRights International, Inc.
Attn: DMCA Agent
51 Melcher Street, 1 st Floor
Boston, MA 02210
Or submitted via email to email@example.com.
You acknowledge and understand that if You fail to comply with the requirements dictated above, Your DMCA notice may be invalid. Please also note that under Section 512(f) any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Counter-Notification. If You elect to send us a counter notice, to be effective it must be a written communication provided to our designated agent that includes substantially the following (please consult your legal counsel or see 17 U.S.C. § 512(g)(3) to confirm these requirements):
- A physical or electronic signature of the subscriber (i.e., You).
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
- The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
If ImageRights receives a Counter-Notification, it may send a copy of the Counter-Notification to the original complaining party informing them that they may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at ImageRights’ sole discretion.