RIGHTS MANAGED CONTENT LICENSE AGREEMENT
Last updated July 24th 2020
This license agreement is between you and POCSTOCK, Inc. (“POCSTOCK”) that explains how you can use photos, illustrations, graphics, vectors, art, audio and video clips (individually and collectively, ("content") that you licensed from POCSTOCK. By downloading content from pocstock.com (“site”), you accept the terms of this agreement.
1. POCSTOCK offers a Rights-Managed ("RM") license for content downloaded from our site. Right-Managed content is licensed for specific types of use and pricing based upon subject, size, placement channel, and duration of use, and any other restrictions that accompany the content on the POCSTOCK website.
2. You may use licensed content in any way consistent with the rights granted below and not restricted (see Restricted Uses below). Subject to those restrictions and the rest of the terms of this agreement, the rights granted to you by POCSTOCK are:
Channel usage, meaning content can be used only in the channels (digital, print, broadcast) selected at the time of purchase.
Duration period, meaning content can be used only during the time period selected at the time of purchase
Worldwide placement, meaning content can be used in any geographic territory within selected channels.
Unlimited, meaning content can be used an unlimited number of times within the selected duration period.
Non-Exclusive, meaning that you do not have exclusive rights to use the content. POCSTOCK can license the same content to other customers.
If you would like exclusive rights to use rights-managed content, please contact POCSTOCK to discuss a custom license.
You are welcome to use content marked as “Comp” from the POCSTOCK site for limited non-commercial testing (composite or comp) use only. However, unless a license is purchased, content cannot be used in any final materials or any publicly available materials. No other rights or warranties are granted for comp use.
For purposes of this agreement, "use" means to copy, reproduce, modify, edit, synchronize, perform, display, broadcast, publish, or otherwise make use of. Please make sure you read the Restricted Uses section below for exceptions.
3. Restricted Uses.
3.1. No Unlawful Use. You may not use content in a pornographic, defamatory or other unlawful manner, or in violation of any applicable regulations or industry codes.
3.2. No Commercial Use of Editorial Content. Unless additional rights are specified by POCSTOCK, or granted pursuant to a separate license agreement, you may not use content marked “editorial” for any commercial, promotional, advertorial, endorsement, advertising or merchandising purpose. This type of content is not model or property released and is intended to be used only in connection with events or topics that are newsworthy or of general public interest.
3.3. No Alteration of Editorial Content. Content marked “editorial” may be cropped or otherwise edited for technical quality, provided that the editorial integrity of the content is not compromised, but you may not otherwise alter the content.
3.4. No Standalone File Use. You may not use content in any way that allows others to download, extract, or redistribute content as a standalone file (meaning just the content file itself, separate from the project or end use).
3.5. No Sensitive Use Without Disclaimer. If you use content that features models or property in connection with a subject that would be unflattering or unduly controversial to a reasonable person (for example, sexually transmitted diseases), you must indicate: (1) that the content is being used for illustrative purposes only, and (2) any person depicted in the content is a model. For example, you could say: “Stock photo. Posed by model.” No disclaimer is required for content marked “editorial” that is used in a non-misleading editorial manner.
3.6. No False Representation of Authorship. You may not falsely represent that you are the original creator of a work that is made up largely of licensed content. For instance, you cannot create artwork based solely on licensed content and claim that you are the author.
Restricted Uses - unless additional license purchased. The following are prohibited without the prior written consent of POCSTOCK and payment of an additional license fee:
3.7. No 'On Demand' Products. Unless you purchase a custom license, you may not use content in connection with "on demand" products (e.g., products in which a licensed image is selected by a third party for customization of such product on a made-to-order basis), including, without limitation, postcards, mugs, t-shirts, calendars, posters, screensavers or wallpapers on mobile telephones, or similar items (this includes the sale of products through custom designed websites, as well as sites such as zazzle.com and cafepress.com).
3.8. No Electronic Templates. Unless you purchase a custom license, you may not use content in electronic or digital templates intended for resale or other distribution (for example, website templates, business card templates, electronic greeting card templates, and brochure design templates).
3.9. No Use in Trademark or Logo. Unless you purchase a custom license, you may not use content (in whole or in part) as the distinctive or distinguishing feature of a trademark, design mark, tradename, business name, service mark, or logo. Additionally, you shall not be entitled to register (in any jurisdiction) such content (in whole or in part) as a trademark or rely on any such registrations, prior use, and/or accrued goodwill to prevent any third party use of the content or any similar content (including by us, our customers, or the copyright owner of such content).
3.10. No Machine Learning, AI, or Biometric Technology Use. Unless expressly authorized by POCSTOCK, you may not use content (including any caption information, keywords or other metadata associated with content) for any machine learning and/or artificial intelligence purposes, or for any technologies designed or intended for the identification of natural persons. Additionally, POCSTOCK does not represent or warrant that consent has been obtained for such uses with respect to model-released content.
3.11. No Metadata Exploitation. Unless expressly authorized by POCSTOCK, you may not use the caption information, keywords, accompanying text, or other metadata associated with content separate and apart from the content, or allow any third parties to access or use any such information associated with content.
4. The rights granted to you cannot be transferred or sub-licensed to anyone else. There are two exceptions:
4.1. Employer or client. If you are purchasing on behalf of your employer or client, then your employer or client can use the content. In that case, you represent and warrant that you have full legal authority to bind your employer or client to the terms of this agreement. If you do not have that authority, then your employer or client may not use the content. The rights purchased may only belong to you or your employer/client, depending on who is named as the “Licensee” at the time of purchase. In other words, if you purchase a rights-managed image, only one of you (and not both) may re-use that image for multiple projects.
4.1.1. Sharing and Storage Restrictions for RM Content. Please note that sharing and storage restrictions apply for rights-managed content. All individuals must be from the same legal entity, however you may make RF content available for viewing by any of your employees, clients and subcontractors. There are no restrictions on where each individual may store the content. The raw file of content may not be provided to anyone outside of your legal entity other than subcontractors. Unless renewed prior to the end of your term, all sharing rights terminate at the end of the agreement term and all content must be removed from your shared server, digital asset management system or other storage system and stored only on individual devices.
4.1.2. User Restrictions for Image Credits. If you purchase Image Credits, sharing and storage restrictions do not apply and an unlimited number of users within the same legal entity may use the licensed content.
4.2. Subcontractors. You may allow subcontractors (for example, your printer or mailing house) or distributors to use content in any production or distribution process related to your final project or end use. These subcontractors and distributors must agree to be bound by the terms of this agreement and may not use the content for any other purpose.
5. User Accounts. You will be responsible for tracking all activity for each user account, and you agree to: (a) maintain the security of all passwords and usernames; (b) notify POCSTOCK immediately of any unauthorized use or other breach of security; and (c) accept all responsibility for activity that occurs under each user account. POCSTOCK reserves the right to monitor downloads and user activity to ensure compliance with the terms of this agreement. If POCSTOCK determines that you are in breach of this or any other term of this agreement, it may suspend access to your account and seek further legal remedies.
6. Intellectual Property Rights.
6.1. Ownership: All of the licensed content is owned by either POCSTOCK or its content suppliers. All rights not expressly granted in this agreement are reserved by POCSTOCK and the content suppliers. You may not assert any right to revenue from a collecting society, social media website, content sharing platform or any other third party in respect of photocopying, digital copying, sharing, distribution or other secondary uses of the licensed content.
6.2.1 Credit Photo: For editorial content, you must include a credit adjacent to the content or in production credits. The credit should be in the following form or as otherwise stipulated in the caption information accompanying the content on the POCSTOCK website: “Photo by [Photographer Name] via POCSTOCK”
6.2.2. Credit Video: For commercial / creative content, no credit is required. If licensed content is used in an audio/visual production where credits are accorded to other providers of licensed material, you must include a credit in comparable size and placement. The credit should be in the following form or as otherwise stipulated in the caption information accompanying the content on the POCSTOCK website: “[Video] [Imagery] supplied by [Artist Name] via POCSTOCK”
6.3. Name or Logo: You may use the name of POCSTOCK and/or its content suppliers as necessary to give attribution, but you may not otherwise use their names, logos, or trademarks without prior written approval.
7. Fees and Renewal. Upon expiration of the term, if your subscription is set to AUTOMATICALLY RENEW, you authorize POCSTOCK to charge or you agree to pay, the applicable subscription fees at the then applicable rate and taxes for the subscription according to your payment information on file. You may change your auto-renewal preferences in your POCSTOCK account. Your subscription may only be cancelled as set out in Section 8. POCSTOCK may deactivate your subscription without prior notice if POCSTOCK is unable to complete a transaction through the payment information provided by you.
8.1. Termination. POCSTOCK may terminate this agreement at any time if you breach any of the terms of this or any other agreement with POCSTOCK, in which case you must immediately: cease using the content; delete or destroy any copies including deleting from social media and 3rd-party platforms; and, if requested, confirm to POCSTOCK in writing that you have complied with these requirements.
8.2. Refunds/Cancellation. POCSTOCK does not offer refunds for any content that has been downloaded.
8.3. Content Withdrawal. POCSTOCK may discontinue licensing any item of content at any time in its sole discretion. Upon notice from POCSTOCK, or upon your knowledge, that any content may be subject to a claim of infringement of a third party’s right for which POCSTOCK may be liable, POCSTOCK may require you to immediately, and at your own expense: cease using the content, delete or destroy any copies; and ensure that your clients, distributors and/or employer do likewise. POCSTOCK will provide you with replacement content (determined by POCSTOCK in its reasonable commercial judgment) free of charge, subject to the other terms of this agreement.
9. Representations and Warranties. POCSTOCK makes the following representations and warranties:
9.1. Warranty of Non-Infringement. For all licensed content POCSTOCK warrants that your use of such content in accordance with this agreement and in the form delivered by POCSTOCK (that is, excluding any modifications, overlays or re-focusing done by you) will not infringe on any copyrights or moral rights of the content owner/creator.
9.2. Additional Warranties for Certain Content.
9.2.1. RM: For licensed rights-managed content (excluding content marked “editorial”), POCSTOCK warrants that your use of such content in accordance with this agreement and in the form delivered by POCSTOCK (that is, excluding any modifications, overlays or re-focusing done by you) will not infringe on any trademark or other intellectual property right, and will not violate any right of privacy or right of publicity.
9.3. Warranty Disclaimer. Unless specifically warranted above, POCSTOCK does not grant any right or make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs, works of art or architecture depicted or contained in the content. In such cases, you are solely responsible for determining whether release(s) is/are required in connection with your proposed use of the content, and you are solely responsible for obtaining such release(s). You acknowledge that no releases are generally obtained for content identified as “editorial,” and that some jurisdictions provide legal protection against a person’s image, likeness or property being used for commercial purposes when they have not provided a release. You are also solely responsible for payment of any amounts that may be due under, and compliance with any other terms of, any applicable collective bargaining agreements as a result of your use of the licensed content.
9.4. Metadata Disclaimer. While POCSTOCK makes reasonable efforts to correctly categorize, keyword, attribute, and title the content, POCSTOCK does not warrant the accuracy of such information, or of any metadata provided with the content.
9.5. No Other Warranties. Except as provided in this section above, the content is provided “as is” without representation, warranty or condition of any kind, either express or implied, including, but not limited to, implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. POCSTOCK does not represent or warrant that the content or its websites will meet your requirements or that use of the content or websites will be uninterrupted or error free.
10. Indemnification/Limitation of Liability.
10.1. Indemnification of POCSTOCK by you. You agree to defend, indemnify and hold harmless POCSTOCK and its parent, subsidiaries, affiliates, and content suppliers, and each of their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside legal fees) arising out of or in connection with (i) your use of any content outside the scope of this agreement; (ii) any breach or alleged breach by you (or anyone acting on your behalf) of any of the terms of this or any other agreement with POCSTOCK; and (iii) your failure to obtain any required release for your use of content.
10.2. Indemnification of you by POCSTOCK. Provided that you are not in breach of this or any other agreement with POCSTOCK, and as your sole and exclusive remedy for any breach of the warranties set forth in Section 9 above, POCSTOCK agrees, subject to the terms of this Section 10, to defend, indemnify and hold harmless you, your corporate parent, subsidiaries and affiliates, and each of your respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside legal fees) arising out of or in connection with any breach or alleged breach by POCSTOCK of its warranties in Section 9 above. This indemnification does not apply to the extent any damages, costs or losses arise out of or are a result of modifications made by you to the content or the context in which the content is used by you. This indemnification also does not apply to your continued use of content following notice from POCSTOCK, or upon your knowledge, that the content is subject to a claim of infringement of a third party’s right.
10.3. The party seeking indemnification must promptly notify in writing the other party about the claim. The indemnifying party (the one covering the costs) has the right to assume the handling, settlement or defense of any claim or litigation. The indemnified party (the one not covering the costs) has to cooperate in any way reasonably requested by the indemnifying party. The indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.
10.4. Limitation of Liability. POCSTOCK WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LOST PROFITS, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF POCSTOCK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY.
11. General Provisions.
11.1. Assignment. You may not assign or transfer this Agreement or any of its rights hereunder (whether by operation of law or otherwise), or delegate any obligations hereunder, without the express written consent of POCSTOCK. POCSTOCK may assign this Agreement to any entity in connection with a reorganization, merger, consolidation, acquisition, or other transaction involving all or substantially all of the voting securities or assets of POCSTOCK. Any assignment or transfer in violation of the foregoing will be null and void from the beginning. This Agreement shall be binding upon and shall inure to the benefit of you and POCSTOCK and its respective successors and permitted assigns.
11.2. Audit. Upon reasonable notice, you agree to provide to POCSTOCK sample copies of projects or end uses that contain licensed content, including by providing POCSTOCK with free of charge access to any pay-walled or otherwise restricted access website or platform where content is reproduced. In addition, upon reasonable notice, POCSTOCK may, at its discretion, either through its own employees or through a third party, audit your records directly related to this agreement and your use of licensed content in order to verify compliance with the terms of this agreement. If any audit reveals an underpayment by you to POCSTOCK of the amount you should have paid, then in addition to paying POCSTOCK the amount of the underpayment and any other remedies to which POCSTOCK is entitled, you also agree to reimburse POCSTOCK for the costs of conducting the audit.
11.3. Electronic storage. You agree to retain the copyright symbol, the name of POCSTOCK, the content’s identification number and any other information or metadata that may be embedded in the electronic file containing the original content, and to maintain appropriate security to protect the content from unauthorized use by third parties. You may make one (1) copy of the content for back-up purposes.
11.4. Governing Law/Arbitration. This Agreement is governed by the laws of the State of New York as applied to agreements made, entered into, and performed entirely in New York by New York residents. You agree that any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. ("JAMS") by arbitrators appointed in accordance with such rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS COMPANY AND CONTRIBUTOR AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. CONTRIBUTOR AGREES THAT, COMPANY AND CONTRIBUTOR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. You agree any arbitration shall take place in New York County in the State of New York and the arbitral decision may be enforced in any court of competent jurisdiction.
11.5. Severability. If any provision of this Agreement is held to be unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the parties to the extent possible. In any event, all other
provisions of this Agreement shall be deemed valid and enforceable to the fullest extent possible.
11.6. Waiver. No failure or delay by any Party to insist upon the strict performance of any term, condition, covenant or agreement of this Agreement, or to exercise any right, power or remedy hereunder or consequent upon a breach hereof
shall constitute a waiver of any such term, condition, covenant, agreement, right, power or remedy or of any such breach or preclude such party from exercising any such right, power or remedy at any later time or times.
11.7. Entire Agreement. This Agreement, is the complete and exclusive agreement between you and POCSTOCK regarding the specific subject matter of this Agreement and supersedes in its entirety all prior agreements, understandings and communications, oral or written, between the Parties hereto regarding the specific subject matter of this Agreement and contains all of the representations made by each Party to the other relating to such subject matter hereof.
11.8. Notice. All notices, requests or demands hereunder shall be in writing and shall be delivered in person, or by registered or certified mail, return receipt requested, or sent by a nationally recognized overnight delivery service, in each case to the applicable Party at its primary business address. All notices by mail shall be deemed delivered five (5) days after mailing in accordance with this paragraph. Such addresses may be changed, from time to time, by means of a notice given in the manner provided in this Section.
11.9. Taxes. You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes, withholding taxes, and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the licensed content.
11.10. Interest on Overdue Invoices. If you fail to pay an invoice in full within the time specified, POCSTOCK may add a service charge of 1.5% per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received.