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Purchase Agreement

ALL SALES ARE FINAL.

PHOSTOXER LICENSING TERMS & CONDITIONS

END-USER LICENSE AGREEMENT (EULA) ? By downloading any image or material from our website, you hereby agree to the following terms and conditions as outlined herein, and as listed elsewhere on our website:

This agreement is made by and between Phostoxer and the end-user (otherwise listed herein as You or Your) who creates an account for the right to access, acquire, and use Materials from this website.  Phostoxer hereby represents that it owns all rights and copyrights to all materials on our website, and all rights and copyrights to said website and materials shall remain the exclusive property, right and control of and under Phostoxer and  ?Materials? from our website will constitute and be defined as any photo,video, image, design, or layout represented on the Phostoxer website.  By downloading any Materials from Phostoxer you are asserting your declaration that you have read, understood, and agreed to all terms and conditions listed in this Agreement, and otherwise identified on our website. 

Terms of Use and Conditions as Defined Below:

A. User?s Rights to Materials from Phostoxer.  You agree to access, acquire, and use our Materials as follows:
 

1. These Terms and Conditions constitute a legal Agreement between You and Phostoxer.
   
   
2. Phostoxer.com grants You a nonexclusive, nontransferable license to download, use, modify, publish, and display our Materials according to the defined Terms and Conditions of this Agreement.
   
   
3. You may access, acquire, and use the materials downloaded from Phostoxer.com subject to these Terms and Conditions in the following manner:

• a. In the development and creation of your business presence and entity.
• b. As part of an offline presentation, meaning in menus, magazines, in books, on book covers as par of the cover?s design, and newspapers.
• c. In the development and creation of marketing, promotional, or advertising materials, including newsletters, mailers, print ads, packaging, and fliers.
• d. As part of office presentation and layout for your business, in other words, for d?cor in an office, lobby, retail store, or public area.
• e. In a PowerPoint presentation, however, use of our Materials in this medium must include an explicit statement in an easily identifiable location in this presentation noting that ?Some images contained in this presentation are the copyrighted property of Phostoxer.  As such, these images are being used under a license from said entities, and may not be copied or downloaded without explicit permission from Phostoxer.?
• f. As part of a design element of a website, video, film, television broadcast, CD-Rom cover, or video game.  However, you may not, under any circumstances use the materials from our website in a Website template or any template or design sold individually or as part of an archive or catalog collection, or an automated shopping system, under any circumstances. You MAY however use our photos in client websites that are NOT distributed through an archive or automatic system.
   

B. User?s Restrictions on the Use of Phostoxer Materials.  You agree not to access, acquire, or use our Materials in any of the following manners:

1. You may not at any time share, sell, give, or allow anyone to use your username/password, nor access your account for any reason.
   
   
2. You may not distribute, share, sell, or give away any of our Materials at any time for any reason whatsoever.
   
   
3. You may not distribute our Materials electronically or in hard copy, except as specifically outlined in the ?User?s Rights to Materials from Phostoxer? section of this Agreement. 
   
   
4. You may not use any of the Materials downloaded or obtained from our site in a Website template or any template or design sold individually or as part of an archive or catalog collection, or an automated shopping system, under any circumstances. You MAY however use our photos in client websites that are NOT distributed through an archive or automatic system.
   
   
5. You may not allow or authorize any third party to use the Materials for any purpose at any time or resell, sublicense, or otherwise make available the Materials for use or distribution separately or detached from a product or Web page.
   
   
6. You may not use any download software, internet accelerators, or other similar software or automated programs to access or download any materials from our website at any time.
7. You may not under any circumstances use Materials in connection with any illegal, obscene, immoral, or pornographic material.
    

C. You understand and agree that Phostoxer may, in its sole discretion:

1. Monitor your download activity from Phostoxer as often as Phostoxer determines under its sole discretion for any reason and for any violation of this Agreement.
   
   
2. Disable any account that engages in what Phostoxer determines to be a large number of photos on any given day, as such activity indicates possible EULA violations or abuse of a username/password and account.
   
   
3. Limit downloads to a fixed amount of downloads per 24 hour period, per user, as Phostoxer sees fit on an individual basis, and to ensure the quality of our service is retained to be delivered to all.
   
   
4. Investigate any abuse of your username and password in connection with the Phostoxer.com website or in connection with this Agreement.
   
   
5. Take the appropriate action to investigate all potential abuse, which can lead to contacting the individual involved with the violations, account suspension, account termination, or other actions deemed necessary depending on the nature and severity of the violations, if we are unable to confirm the validity of the activity.
   
   
6. Terminate your account immediately for any violation of this agreement, or the Terms and Conditions as defined in this Agreement and elsewhere on Phostoxer, without notice.  If your account is terminated for any violation of this Agreement and/or abuse of your username or password, and/or our Materials, you lose all rights to Phostoxer Materials, and you must IMMEDIATELY delete any and all Materials obtained prior to this termination, and forfeit all fees paid.
    

D. You understand that Materials are copyrighted and owned by Phostoxer only, and any unauthorized use of any of these Materials by you may be an infringement upon said copyright. 
 
E. Phostoxer and all Materials are made available to you ?AS IS,? ?AS AVAILABLE,? and ?WITH ALL FAULTS.?  Phostoxer its employees, directors, and officers and anyone else associated with Phostoxer makes no representation or warranty, express or implied, including without limitation warranties of merchantability, fitness for a particular purpose, or non-infringement.  Phostoxer further makes no representation or warranty that your usage of Phostoxer will be uninterrupted, error free of computer viruses, or other damaging materials.  When you login to your account, and access Phostoxer, you do so at your own risk.
 
F. Phostoxer, its employees, directors, and officers, or anyone else associated with Phostoxer shall not be liable for any indirect, special, consequential, economic damages including but not limited to loss of revenue or profits, arising out of the use, or inability to use, the Materials.  Phostoxer, its employees, or related parties, will in no event be liable for any damages to exceed the amount paid by you for accessing or using Phostoxer, and for accessing, acquiring, and/or using Materials from Phostoxer.
 
G. AGE OF MAJORITY.  You warrant and attest that you are of the age of majority, and that your signature shall serve as confirmation and attestation to this statement.  You further agree that you fully understand the contents, meaning and impact of this agreement.  You will not use these Materials in any way that is not permitted in this Agreement or in violation of this Agreement.  Your use of these Materials will not violate any applicable law or regulation of any country, state, or other governmental entity.  You further attest that the information you provide to Phostoxer is accurate and true, including without limitation all credit card information
 
H. You agree to fully, indemnify, and hold harmless Phostoxer, its employees, directors, officers, and any other entity associated with Phostoxer, and each  of its successors, licensees, and assigns free and harmless from any and all claims, liabilities, costs, losses, damages, expenses, including attorneys? fees and expenses, arising in connection with Your use of the Materials and this website or of any breach or alleged breach of any representation, warranty, or other promise made by You in this Agreement.
 
I. ENTIRE AGREEMENT. You acknowledge that this agreement expresses the parties entire understanding and agreement, and that there have been no warranties, representations, covenants, or understandings made by either party to the other except as expressly set forth in this agreement.  Any modifications to this agreement shall be made in writing and agreed to by both parties in writing.  The parties further acknowledge that this agreement supersedes, terminates, and otherwise renders null and void any and all prior or contemporaneous agreements or contracts, whether written or oral, entered into between the Buyer and Seller with respect to the matters expressly set forth in this agreement.
 
J. You agree, attest, and reaffirm your agreement to the terms listed herein and to conduct your transaction electronically.
 

ROYALTY FREE LICENSE AGREEMENT

THIS IS A LEGAL AGREEMENT BETWEEN YOU ("LICENSEE”) AND PHOSTOXER LLC ("LICENSOR”). BY ACCEPTING AND USING THE IMAGES YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
1. Definitions.  In this Agreement the following definitions apply:
"Images” means all types of photographic images, digital images and any and all other visual images and shall include all metadata including keywords, descriptions and captions associated therewith.?
"Invoice" means the agreement provided by Licensor or an authorized distributor that includes among other terms, the permitted scope of use of the Images selected, any limitations on the use of the Images and the license fee that corresponds to the use. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.?
"Reproduce" means any form of copying or publication of the whole or a part of any Image(s) via any medium and by whatever means and the creation of any derivative work from, or that incorporates, Licensor’s Royalty Free Image(s).
2. Grant of Rights & Restrictions
Subject to the terms of this License Agreement, PHOSTOXER LLC ("Licensor”) grants Licensee a perpetual, worldwide, non-transferable, non-exclusive right to reproduce, transmit and display, in whole or in part, Licensor’s Royalty Free Image(s) an unlimited number of times, in any and all media for the permitted uses described below. All other rights to the Image(s) and accompanying materials (if applicable), including without limitation, copyright and all other rights, are retained by Licensor. All rights not specifically granted are retained by Licensor.?
Licensee is permitted to use Image(s) in:?(a) Any print media, including advertising and promotional materials, editorial publications and consumer merchandise;?(b) Any internet, intranet, online or web-based media;?(c) Products intended for resale; provided these products are not intended to allow the re-distribution or re-use of the Image(s)?(d) Theatrical and broadcast exhibitions; and?(e) Additional uses approved in writing by Licensor.?
Licensee may also:?(a) Alter, crop, or modify or adapt the Images in connection with the above permitted uses; and?(b) Store the Image(s) in a digital library, network configuration or similar arrangement to allow the Licensed Material to be viewed by employees, partners and clients of Licensee;?(c) Make a back-up copy of the Image(s) for internal back-up purposes provided Licensor’s copyright and any image identifying information embedded within the digital file is retained with the file. Limited, temporary transfers of the Images are permitted to third parties integral to the creation of the final product, provided such third parties agree to abide by the terms of this Agreement.?
Licensee may not:?(a) Sell, assign, convey, sublicense or transfer any of its rights under this Agreement, but Licensee may sell or license derivative works incorporating the Images. However, Licensee may not include the Images in an electronic template intended to be used by third parties on electronic or printed products, where the purpose is to create multiple impressions, including but not limited to: website designs, presentation templates, electronic greeting cards, business cards, or any other electronic or printed matter without obtaining a license for such purpose;?(b) Sell, license or distribute its final product in such a way that permits Licensee's end users to extract or access the Images as a stand-alone file;?(c) Incorporate the Images into a trademark, logo or service mark, without obtaining the prior written consent of Licensor;?(d) Distribute, post or upload the Image(s) online in a downloadable format or enable it to be distributed via computers or mobile telephone devices; and?(e) Use any Image(s) in a pornographic, defamatory, libelous or unlawful manner, whether directly or in context or juxtaposition with other materials.
3. Releases/Captions
Licensor will notify Licensee if it has obtained a model release and/or a property release for Image(s), either in the release status information accompanying the Image(s) on Licensor's website, in the Invoice or by other means. If no such notification is given, then no such model or property release has been obtained. Licensor grants no rights and makes no warranties with regard to the use of names, people, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Image(s). Licensee shall be solely responsible for determining whether a release is sufficient for the proposed use or is required in connection with any proposed use of such Image(s). Licensee acknowledges that some jurisdictions provide legal protection against a person's image, likeness or property being used for commercial purposes without their consent. Licensor used commercially reasonable efforts to identify the caption for each Image, but cannot be held responsible for erroneous or incomplete caption information.
4. Credit
All Images used in an editorial context must include the following credit line adjacent to the Licensed Material: "[Photographer's name]/ Phostoxer]". If Licensee omits the credit, an additional fee equal to two (2) times the original amount invoiced shall be payable by Licensee at Licensor’s sole discretion. The foregoing fee shall be in addition to any other rights or remedies that Licensor may have at law or in equity. Images used for advertising purposes do not require credit.
5. Electronic Storage
For all Image(s) that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of Licensor and the image number, all metadata or other identification number associated with the Image(s) may be included as part of the electronic file. Licensee will take all reasonable measures to safeguard against unauthorized third-party access to the Image(s). Licensee may make one (1) high-resolution backup copy of the Image(s) for security reasons only. Upon the expiration or earlier termination of this Agreement, Licensee shall promptly delete the Image(s) from its computer or other electronic storage systems and shall ensure that any client authorized to use the Images deletes the Image(s) as well.
6. Payment Terms
No licenses are granted nor any images will be made available to Licensee until full payment of Licensor’s invoice is received.  Payment of the Invoice is to be net thirty (30) days. Any claims for adjustment or rejection of terms must be made to Licensor within ten (10) days after receipt of invoice.?
7. Cancellation Policy
If Licensee cancels rights granted in the Invoice within seven (7) business days from the date of the Invoice, and Licensee have not used any of the licensed Images, Licensee will be charged a $50 transaction fee per licensed Image cancelled.  If the cancellation notice is received more than seven (7) but less than thirty (30) business days after the Invoice date, a cancellation fee equal to fifty (50%) percent of the amount of the Invoice will be charged to Licensee.  NO CANCELLATIONS WILL BE ACCEPTED AFTER THIRTY (30) DAYS AND THE FULL AMOUNT OF THE INVOICE IS DUE REGARDLESS of whether LICENSEE USES THE LICENSED IMAGE(S).  ALL CANCELLATIONS ARE FINAL.  Licensee agrees to pay all the foregoing applicable fees without any right of set-off or other defense.
8. Warranty
Licensor warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; and (ii) the Image(s) will be free from defects in material and workmanship for 30 days from delivery (Licensee's sole and exclusive remedy for a breach of this warranty being the replacement of the Image(s)). ?
LICENSOR DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF LICENSOR 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 FOR CERTAIN CATEGORIES OF DAMAGES. LICENSOR SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING OUT OF OR AS A RESULT OF MODIFICATIONS MADE TO THE LICENSED MATERIAL BY LICENSEE OR THE CONTEXT IN WHICH LICENSED MATERIAL IS USED IN A LICENSEE WORK.
9. Unauthorized Use
Any use of licensed Image(s) in a manner not expressly authorized by this Agreement or in breach of any terms of this Agreement constitutes copyright infringement, entitling Licensor to exercise all rights and remedies available to it under copyright laws around the world. Licensee shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party. Additionally and without prejudice to Licensor’s other remedies under this Agreement, Licensor reserves the right to charge and Licensee agrees to pay a fee equal to five (5) times Licensor’s normal license fee for use of the Image(s).
10. Termination and Revocation
Licensor reserves the right to automatically terminate or revoke the license contained in this Agreement and invoice without notice if Licensee fails to comply with any provision of this Agreement. Upon termination, Licensee and its client must immediately stop using the Image(s), delete the Image(s) and all copies from all storage media. Licensor reserves the right to discontinue the use of any Image(s) for any reason and elect to replace the Image(s) with an alternate Image(s). Upon notice of any discontinuance of the use of a particular Image, Licensee, its employer and its client, if applicable, agree not to use the Image(s) in the future.
11. Indemnification
If Licensee's use of the Image(s) is not authorized by this Agreement, Licensee shall defend, indemnify and hold Licensor and its officers, directors and employees harmless from all damages, liabilities and expenses (including reasonable attorneys' fees and costs), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding relating to the use of such Image(s) by Licensee, to the extent that such claim relates to the absence of a release or the Licensee's unauthorized use of the Image(s).?
The party seeking indemnification pursuant to this Section 11 shall promptly notify the other party of such claim. At indemnifying party's option, indemnifying party may assume the handling, settlement or defense of any claim or litigation, in which event indemnified party shall cooperate in the defense of any such claim or litigation as may be reasonably requested by indemnifying party. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. 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.
12. Miscellaneous Terms
Governing Law. This Agreement will be governed in all respects by the laws of the State of Nevada, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from this Agreement or its enforceability shall be finally settled by binding arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under the Commercial Rules of the American Arbitration Association ("AAA") or of the International Chamber of Commerce ("ICC") (the applicable rules to be at Licensee’s discretion) to be held in Las Vegas, Nevada. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, Phostoxer shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against Supplier in the event that, in the opinion of Getty Images, such action is necessary or desirable.?
No Assignment. This agreement is not assignable or transferable on the part of Licensee.?
Waiver. No action of Licensor, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of Licensor in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of those rights or remedies on any other occasion.?
Entire Agreement. This Agreement and the Invoice contains all the terms of the agreement between Licensor and Licensee and no term or conditions may be added or deleted unless made in writing and signed by both parties. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other writing sent by Licensee, the terms of this Agreement shall govern.

 

RIGHTS MANAGED LICENSE AGREEMENT

THIS IS A LEGAL AGREEMENT BETWEEN YOU ("LICENSEE”) AND PHOSTOXER LLC ("LICENSOR”). BY ACCEPTING AND USING THE IMAGES YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
1. Definitions.  In this Agreement the following definitions apply:
"Images” means all types of photographic images, digital images and any and all other visual images and shall include all metadata including keywords, descriptions and captions associated therewith.?
"Invoice" means the agreement provided by Licensor or an authorized distributor that includes among other terms, the permitted scope of use of the Images selected, any limitations on the use of the Images and the license fee that corresponds to the use. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
2. Grant of Rights & Restrictions
Limited Use License. Unless stated otherwise in the Invoice, Licensor grants to Licensee a non-exclusive, non-sub-licensable and non-assignable right to reproduce, display, broadcast, transmit or create a derivative work (collectively "use”) the Images identified in the Invoice, solely to the extent the use is explicitly stated in the Agreement. If Licensee is obtaining rights on behalf of a client, it may permit the client to exercise the rights granted, provided the client or any subcontractor or employee agrees to uses the Image(s) as limited in the Invoice and agrees to be bound by the terms of the Agreement. Notwithstanding the foregoing, Licensee and client remain jointly and severally liable and responsible for all uses. No ownership or copyright in any Image(s) shall transfer to Licensee by the grant of the license contained in this Agreement or Invoice. All rights not expressly granted to the Licensee are reserved to Licensor and the copyright holder.?
The use of the licensed Image(s) is strictly limited to the use, medium, period of time, print run, placement, size of image, territory and any other restrictions specified in the Invoice. Licensee may not use nor permit the use of the licensed Image(s) beyond the terms of the limited license Agreement without first obtaining an additional license, including any electronic reproduction or promotional rights.?
Licensee may not use any Image in a manner that is defamatory, pornographic or obscene, whether directly or in context or juxtaposition with specific subject matter.?
Licensee may not incorporate the licensed Image in any logo, trademark or service mark.?
Licensee may not archive, republish or transmit any images on any database or to a network or bulletin board or otherwise distribute or allow any of the Images to be distributed to or used by anyone other than the authorized users, without prior written consent from Licensor.?
Licensee may not use the Image(s) contrary to any restriction on use provided to Licensee prior to or at the time the Image is delivered to Licensee. Restrictions may be provided with the Image information located on Licensor’s or any authorized distributor’s website or otherwise communicated.?
Licensee may not use any of the Images in any manner prohibited by any export laws, restrictions or regulations.?
Licensee may not use the Images in any manner that would be deemed offensive to the model. Offensive uses include but are not limited to the use of an Image that involves or implies illegal activities, adverse medical conditions or procedures, other adverse health or mental health issues, substance abuse, welfare or economic aid, dating agencies, sexual preference, teen pregnancy, abortion and adoption, political or religious affiliation, smoking or alcohol usage, feminine hygiene, incontinence or impotence. ?
If any Image featuring a model is used in (i) a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service; or (ii) in connection with a subject that would be unflattering or controversial to a reasonable person, Licensee must accompany each such use with a conspicuous statement that indicates that the person so pictured is a model and the Image is used for illustrative purposes only.
3. Releases/Captions
Licensor will notify Licensee if it has obtained a model release and/or a property release for Image(s), either in the release status information accompanying the Image(s) on Licensor's website, in the Invoice or by other means. If no such notification is given, then no such model or property release has been obtained. Licensor grants no rights and makes no warranties with regard to the use of names, people, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Image(s). Licensee shall be solely responsible for determining whether a release is sufficient for the proposed use or is required in connection with any proposed use of such Image(s). Licensee acknowledges that some jurisdictions provide legal protection against a person's image, likeness or property being used for commercial purposes without their consent. Licensor used commercially reasonable efforts to identify the caption for each Image, but cannot be held responsible for erroneous or incomplete caption information.
4. Credit
All Images used in an editorial context must include the following credit line adjacent to the Licensed Material: "[Photographer's name]/ Phostoxer]". If Licensee omits the credit, an additional fee equal to two (2) times the original amount invoiced shall be payable by Licensee at Licensor’s sole discretion. The foregoing fee shall be in addition to any other rights or remedies that Licensor may have at law or in equity. Images used for advertising purposes do not require credit.
5. Electronic Storage
For all Image(s) that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of Licensor and the image number, all metadata or other identification number associated with the Image(s) may be included as part of the electronic file. Licensee will take all reasonable measures to safeguard against unauthorized third-party access to the Image(s). Licensee may make one (1) high-resolution backup copy of the Image(s) for security reasons only. Upon the expiration or earlier termination of this Agreement, Licensee shall promptly delete the Image(s) from its computer or other electronic storage systems and shall ensure that any client authorized to use the Images deletes the Image(s) as well.
6. Payment Terms
 No licenses are granted nor any images will be made available to Licensee until full payment of Licensor’s invoice is received.  Payment of the Invoice is to be net thirty (30) days. Any claims for adjustment or rejection of terms must be made to Licensor within ten (10) days after receipt of invoice.?
7. Cancellation Policy
 If Licensee cancels rights granted in the Invoice within seven (7) business days from the date of the Invoice, and Licensee have not used any of the licensed Images, Licensee will be charged a $50 transaction fee per licensed Image cancelled.  If the cancellation notice is received more than seven (7) but less than thirty (30) business days after the Invoice date, a cancellation fee equal to fifty (50%) percent of the amount of the Invoice will be charged to Licensee.  NO CANCELLATIONS WILL BE ACCEPTED AFTER THIRTY (30) DAYS AND THE FULL AMOUNT OF THE INVOICE IS DUE REGARDLESS of whether LICENSEE USES THE LICENSED IMAGE(S).  ALL CANCELLATIONS ARE FINAL.  Licensee agrees to pay all the foregoing applicable fees without any right of set-off or other defense.
8. Warranty
Licensor warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; and (ii) the Image(s) will be free from defects in material and workmanship for 30 days from delivery (Licensee's sole and exclusive remedy for a breach of this warranty being the replacement of the Image(s)). ?
LICENSOR DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED MATERIAL OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF LICENSOR 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 FOR CERTAIN CATEGORIES OF DAMAGES. LICENSOR SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING OUT OF OR AS A RESULT OF MODIFICATIONS MADE TO THE LICENSED MATERIAL BY LICENSEE OR THE CONTEXT IN WHICH LICENSED MATERIAL IS USED IN A LICENSEE WORK.
9. Unauthorized Use
Any use of licensed Image(s) in a manner not expressly authorized by this Agreement or in breach of any terms of this Agreement constitutes copyright infringement, entitling Licensor to exercise all rights and remedies available to it under copyright laws around the world. Licensee shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party. Additionally and without prejudice to Licensor’s other remedies under this Agreement, Licensor reserves the right to charge and Licensee agrees to pay a fee equal to five (5) times Licensor’s normal license fee for use of the Image(s).
10. Termination and Revocation
Licensor reserves the right to automatically terminate or revoke the license contained in this Agreement and invoice without notice if Licensee fails to comply with any provision of this Agreement. Upon termination, Licensee and its client must immediately stop using the Image(s), delete the Image(s) and all copies from all storage media. Licensor reserves the right to discontinue the use of any Image(s) for any reason and elect to replace the Image(s) with an alternate Image(s). Upon notice of any discontinuance of the use of a particular Image, Licensee, its employer and its client, if applicable, agree not to use the Image(s) in the future.
11. Indemnification
If Licensee's use of the Image(s) is not authorized by this Agreement, Licensee shall defend, indemnify and hold Licensor and its officers, directors and employees harmless from all damages, liabilities and expenses (including reasonable attorneys' fees and costs), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding relating to the use of such Image(s) by Licensee, to the extent that such claim relates to the absence of a release or the Licensee's unauthorized use of the Image(s).?
The party seeking indemnification pursuant to this Section 11 shall promptly notify the other party of such claim. At indemnifying party's option, indemnifying party may assume the handling, settlement or defense of any claim or litigation, in which event indemnified party shall cooperate in the defense of any such claim or litigation as may be reasonably requested by indemnifying party. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. 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.
12. Miscellaneous Terms
Governing Law. This Agreement will be governed in all respects by the laws of the State of Nevada, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from this Agreement or its enforceability shall be finally settled by binding arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under the Commercial Rules of the American Arbitration Association ("AAA") or of the International Chamber of Commerce ("ICC") (the applicable rules to be at Licensee’s discretion) to be held in Las Vegas, Nevada. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defense on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, Phostoxer shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against Supplier in the event that, in the opinion of Getty Images, such action is necessary or desirable.?
No Assignment. This agreement is not assignable or transferable on the part of Licensee.?
Waiver. No action of Licensor, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of Licensor in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of those rights or remedies on any other occasion.?
Entire Agreement. This Agreement and the Invoice contains all the terms of the agreement between Licensor and Licensee and no term or conditions may be added or deleted unless made in writing and signed by both parties. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other writing sent by Licensee, the terms of this Agreement shall govern.