Legal | Locstock

Legal — Locstock.co.za Download Agreement

THIS IS A FAIRLY LENGTHY DOCUMENT, AND IT CONTAINS MANY IMPORTANT PROVISIONS THAT AFFECT YOUR RIGHTS AND OBLIGATIONS. BY CLICKING THE SUBMIT BUTTON IN THE REGISTRATION PROCESS, YOU HEREBY AGREE TO BE BOUND BY THIS AGREEMENT. WE ENCOURAGE YOU TO PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS.

This agreement (this "Agreement") shall be binding upon Locstock and any member (a member is any person who registers on locstock.co.za) who downloads a photograph or image ("Work") from the Locstock.co.za website, herin after reffered to as "The Downloading Member". The Downloading Member acknowledges and agrees that he or she shall be bound by the terms and conditions of this Agreement and that this Agreement applies to each Work that the Downloading Member downloads.

This Agreement works in conjunction with Locstock’s Terms and Conditions of Use, and any contradictions between the Terms and Conditions of Use and the Download Agreement will not affect any other part of either agreement.

1. No Sale

The Downloading Member acknowledges and agrees that this Agreement does not create any sale of the Work. Except for the rights specifically sublicensed under this Agreement, the Downloading Member shall not have any right, title or interest in or to, and in any event shall have no ownership of, the Work, including any copyright and other intellectual property rights.

2. Sublicense

Subject to the terms and conditions of this Agreement, Locstock hereby grants to the Downloading Member a non-exclusive, perpetual, worldwide, non-transferable sublicense to use, reproduce or display the Work solely for (a) personal or educational purposes and (b) in connection with the operation of a business. However, the Downloading Member shall have no right to sell or otherwise distribute the Work or any reproductions thereof to any third parties, whether alone or incorporated or together with or onto any item of merchandise or other work of authorship, in any media or format now or hereafter known. Notwithstanding the above, the Downloading Member shall have the right to distribute the Work solely as incorporated onto an item of merchandise or other work of authorship if the Work has been modified to the extent that it is no longer substantially similar to the original Work (where such modification may be in the form of changes to the Work itself or the incorporation of the Work into other Non-Locstock image(s), such as a collage), provided however that the modification must be sufficient enough to qualify as an original work of authorship. Furthermore, the Downloading Member shall have the right to distribute the Work solely as incorporated onto an item of merchandise or other work of authorship if the primary value of the item being distributed does not lie with the Work(s) themselves. For greater clarity, it is noted that reproducing the unmodified Work on mugs, t-shirts, posters, or other similar merchandise for resale is not permitted, as primary value would still lie in the Work itself. The Downloading Member shall have no right to grant further sublicenses. The Downloading Member shall have the right to transfer files containing the Work or permitted derivative works to employees, or have the Work reproduced by subcontractors, provided that such employees and subcontractors agree to abide by the restrictions of this agreement. In the normal course of workflow, the Downloading Member may also convey to a third party (such as a printer) temporary copies of the Work that are integral to the work product and without which the work product could not be completed. Third parties, employees and subcontractors shall have no further or additional rights to use the Work and cannot access or extract it from any other file provided. The Downloading Member may create a digital library, network configuration or similar arrangement to allow the Work to be viewed by their employees, partners and clients. The Downloading Member shall pay to Locstock a sublicense fee in accordance with Locstock’s standard pricing and payment policies; depending on the Downloading Member’s country of residence or on other similar parameters to be determined by Locstock. Notwithstanding anything to the contrary contained in this Agreement, with respect to electronic formats, the Downloading Member's reproduction, distribution or display of the Work : (i) shall be limited to a resolution of 1800 x 1195 pixels (regardless of the resolution of the Work available for downloading from the Locstock.co.za website); and (ii) shall be limited to the resolution available for downloading from the Locstock.co.za website in other electronic uses. For clarification purposes but subject to the foregoing restrictions, it is intended that this sublicense shall permit use, reproduction and display of the Work in or for a business or commercial setting or circumstances, display in an office or other place of business, and the like.

Notwithstanding anything to the contrary contained in this Agreement (including, without limitation, the restriction in subsection 3(a) below), the Downloading Member may utilize all the rights under this Agreement for itself, and additionally, on behalf of one (1) of its clients. As such, the Downloading Member may sublicense its rights and obligations hereunder to one (1) such client, and such client shall have all the rights, restrictions and obligations under this Agreement, but without the right to further sublicense these rights to additional parties. If the Downloading Member desires to use the Work on behalf of more than one (1) client, then the Downloading Member will have to download and pay for additional license(s) to the same Work.

Notwithstanding the above, if a Work is in violation of Locstock’s Terms and Conditions of Use, Locstock reserves the right to instruct the Downloading Member to cease all use, distribution and possession of such Work, and the Downloading Member must promptly comply with such instructions.

2. A Social Media

The Downloading Member may not post and/or upload Works (and modifications thereof) directly onto Social Media Websites and Applications (as defined below). For purposes hereof, the term “Social Media Websites and Applications” shall mean: A website or technological application which has a primary focus on facilitating social interaction among its users and allowing users to generate, share, exchange and/or modify content in connection with such social interaction.

3. Restrictions

Notwithstanding anything to the contrary contained in this Agreement, and without limitation to any aforementioned restrictions, the Downloading Member acknowledges, agrees and warrants that he or she shall not:

  1. Sublicense, sell, assign, convey or transfer any of it's rights under this agreement. Sell, license or distribute the Work or any modified Work as stand-alone files or as part of an online database or any other database, or any derivative product containing the Work in such way that would allow a third party to download, extract or access the Image as a stand-alone file;
  2. Share the Work with any other person or entity except as expressly permitted under this Agreement;
  3. Post the Work online in downloadable format, post the Work on an electronic bulletin board, or enable the Work to be distributed via mobile telephone devices. Include the Work in any electronic template or application, including those that are web based, where the purpose is to create multiple impressions of an electronic or printed product, including but not limited to website design, presentation templates, electronic greeting cards, business cards or any other electronic or printed matter;
  4. Download or store the Work on more than one computer at the same time, except that the Downloading Member may make a single backup copy to be stored on media separate from the single permitted computer;
  5. Use, reproduce, distribute or display the Work in connection with design template applications intended for resale;
  6. Use, reproduce, distribute or display the Work in connection with any goods or services intended for resale or distribution which primary value lies in the work itself, including, without limitation, mugs, t-shirts, posters, greeting cards, posters or other merchandise, and any of the foregoing in "print on demand" or tangible or electronic formats, as applicable;
  7. Use, reproduce, distribute or display the Work (including, without limitation, by itself or in combination with any other work of authorship) in any manner that is libelous or slanderous or otherwise defamatory, obscene or indecent;
  8. Remove any notice of copyright, trademark or other intellectual property right, or other information that may appear on, embedded in, or in connection with the Work in its original downloaded form, it being understood that the Downloading Member shall reproduce any and all such notices in any backup copy of the file comprising the Work that the Downloading Member makes;
  9. Incorporate the Work into a trademark or service mark;
  10. Take any action in connection with the Work that violates any law, regulation or statute in an applicable jurisdiction;
  11. Use the Work in an editorial manner, without the following credit adjacent to the Image: "© [Photographer's name] / Locstock" (the Copyright Notice);
  12. Take any action in connection with the Work that violates or infringes the intellectual property or other rights of any person or entity, including, without limitation, the moral rights of the creator of the Work and the rights of any person who, or any person whose property, appears in the Work; or
  13. Take any action in connection with the Work that would reasonably imply that the creator of the Work, or the persons or property appearing in the Work (if any), endorse any political, economic or other opinion-based movements or parties.
  14. Use the Work in a way that places any person in the photo in a bad light or depicts them in a way that they may find offensive - this includes, but is not limited to:
    1. the use of Images in pornography;
    2. tobacco ads;
    3. ads for adult entertainment clubs or similar venues, or for escort or similar services;
    4. political endorsements;
    5. uses that are defamatory, or contain otherwise unlawful, offensive or immoral content.
  15. The Downloading Member may not cause or allow any given Work (including modifications thereof) to be reproduced more than 10 times, in total

4. Payments and Pricing

As indicated above, the Downloading Member shall pay to Locstock a sublicense fee in accordance with Locstock’s standard pricing and payment policies.

5. Ownership and Retention of Rights

The Downloading Member acknowledges and agrees that Locstock and/or its licensor retains all rights, title and interest in and to the Work (except for the rights granted pursuant to this Agreement), and that neither title nor any ownership interest in or to the Work is transferred to the Downloading Member by virtue of this Agreement. Locstock and/or its licensor (as applicable) shall also retain the right to use, reproduce or display the Work solely to demonstrate the Work as part of his or her professional portfolio. Without any limitation to any other rights that Locstock may retain, Locstock shall continue to have the right to use the Work for internal archival and reference purposes.

6. Representations and Warranties

In addition to the representations and warranties made by the Downloading Member above, each of Locstock and the Downloading Member hereby represent and warrant that it, or he or she, has the right to enter into this Agreement.

7. Indemnification

The Downloading Member agrees to indemnify, defend and hold harmless Locstock and its affiliates, and their respective officers, directors, employees, owners, agents, representatives, licensors and (sub)licensees (collectively, "Indemnitees") from and against all claims, expenses (including attorney fees) or other liability arising from the Downloading Member’s breach of any of his or her representations, warranties or obligations under this Agreement, and from any and all uses of the Work, including, without limitation, any claims or actions based on infringement or violation of intellectual property rights, libel or slander or other defamation, right of privacy or “false light”, right of publicity or blurring or distortion or alteration whether or not intentional. Locstock shall have the right, in its sole discretion, to control the defense of any claim, action or matter subject to indemnification by the Downloading Member with counsel of its own choosing. The Downloading Member shall fully cooperate with Locstock in the defense of any such claim, action or matter.

8. Limitations and Disclaimer

The Downloading Member agrees that neither Locstock nor its affiliates, nor any of their respective officers, directors, employees, owners, agents, representatives, licensors and (sub)licensees (other than the Downloading Member), shall be liable for any damages, whether direct, incidental, indirect or consequential, arising from any use or non-use of the Work, even if such parties have been advised, or advised of the possibility, of such damages.

The Downloading Member acknowledges that Locstock generally does not have releases for people, places, trademarks, logos or other intellectual property of other parties that may be depicted in some Works. The procuring of such releases is the responsibility of the Downloading Member.

The Downloading Member acknowledges that Locstock generally does not have releases from property owners, manufacturers or designers of commercial products such as (without limitation) automobiles, aircraft, packaged products, designer clothing, etc. that are depicted in some Works. It is generally not possible for any stock image library or artist to get blanket releases for such products, but they can often be obtained on a case-by-case basis. The procuring of such releases is the responsibility of the Downloading Member.

THE WORK IS PROVIDED "AS IS" AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE

9. Term and Termination

This Agreement shall continue in perpetuity unless terminated in accordance with this Section 9. Locstock may at any time terminate this Agreement with respect to any Work in the event of any breach by the Downloading Member of any of his or her representations, warranties or obligations under this Agreement. The Downloading Member may at any time terminate this Agreement. Each of Locstock and the Downloading Member shall notify the other by e-mail (Locstock’s e-mail address: info@locstock.co.za) in the event it, he or she terminates this Agreement. Locstock shall also have the right, in its sole discretion, to deny the downloading of any Work from the Locstock.co.za website. Upon termination of a license for any particular Work, the Downloading Member shall immediately cease using such Work, destroy, or upon the request of Locstock return the Work to Locstock, delete or remove the Work from its permises, computer systems and storage (electronic and physical), and shall ensure that its clients and customers do likewise.

10. Effect of Termination

Upon the termination of this Agreement, the Downloading Member shall cease using all Works and destroy all copies of each Work, and all derivative works and related materials (if any), in his or her possession or control. At Locstock’s request, the Downloading Member shall certify in writing to such destruction of all Works, derivative works and/or related materials. Termination of this Agreement shall not relieve the Downloading Member from any payment obligations that may have arisen prior to such termination. The provisions of Sections 1, 4, 5, 6, 7, 8, 10 and 11 shall survive the termination of this Agreement.

11. Miscellaneous

This Agreement shall be governed by and construed in accordance with the laws of South Africa, 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 courts of South Africa, and the Downloading Member and Locstock 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 relationship between Locstock and the Downloading Member under this Agreement is that of independent contractors. For clarification purposes, the parties are not joint ventures, partners, principal and agent, or employer and employee. Neither party shall have the power to bind or obligate the other in any manner.

The Downloading Member agrees that he or she shall be responsible for all use, sales, value-added and similar taxes and duties imposed by any governing authority in any jurisdiction in connection with the license granted to him or her under this Agreement.

No waiver on the part of Locstock to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of Locstock to exercise any such power, right, privilege or remedy, shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
Locstock shall have the right, in its sole discretion, to assign any or all of its rights or obligations under this Agreement. The Downloading Member shall have no right to assign any of his or her rights or obligations under this Agreement.

This Agreement shall be inure to the benefit of, and be binding upon, Locstock and the Downloading Member, and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer upon any person or entity, other than Locstock and the Downloading Member, and their 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

Last update: 02/26/2014