These Terms and Conditions serve as a non-transferable contract between you (the person
viewing this web site and using our Images) and us (THE GAILANS COLLECTION).
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS.
Your acceptance of these terms is an absolute condition of your access to and use of any
image(s). Downloading and/or using any image(s) from THE GAILANS COLLECTION confirms
your acceptance of these terms and forms a legal contract between you and THE GAILANS
COLLECTION.
THE GAILANS COLLECTION reserves the right to change any of the terms of this Agreement at
any time, and you agree to be bound by such changes. If you do not agree to the following
terms, as may be amended, do not download or use any Image(s).
1. LICENCE
A. Definitions:
"Creator" refers to the photographer or artist responsible for producing the Images (pictures)
on this web site.
"Image" means a photograph, picture, transparency, negative, design, artwork, painting,
graphic work, diagram, montage, illustration, drawing or engraving as well as any Image on a
computer disk, or on magnetic tape, or transmitted electronically in digital form, or stored in a
computer-based retrieval system, or any other item that may be offered by us to you for the
purpose of Reproduction, together with all accompanying metadata and other material.
"Client", "You and "Your" refer to the individual viewing THE GAILANS COLLECTION web site.
All three terms also refer to the individual downloading Images from this web site. In addition,
all three terms refer to the recipient/licensee of the Images and its/your representatives. The
terms "Us", "Our" and "We" refer to THE GAILANS COLLECTION, the authorised agent for the
creators of the Images on this web site.
"User" shall mean the individual, legal entity or agent entering into this Agreement or any
employee or contractor of such individual, legal entity or agent that edits, manipulates or
modifies the Images or are otherwise directly involved in the creative process including, but
not limited to, photo editors, photo researchers, photographers, art directors or designers. All
Users shall only use the Images in accordance with the terms of this Agreement.
"Comp Use" is defined as the creation of a temporary test use, rough layout or comprehensive
rendering of a proposed work for client review, internal company review or testing. The Image
may not be used in any materials distributed or accessible to the public or in any final product
or use, including, without limitation, any online or other electronic distribution system (except
you may transmit comps digitally or electronically for their review) and may not be sold or
sublicensed alone or as part of any product.
"Reproduction" means any form of copying, displaying or publication of the whole or part of
any Image made available to you by us, whether such Image is altered or manipulated in any
way or not by you, and whether reproduced by printing, photography, photocopying, scanning
or slide projection (whether or not to an audience) by electronic, digital or mechanical means.
"Reproduction" also means the downloading and/or storage of an Image by any means,
including digitally. "Reproduction" is also understood by you and us to include the use, either in
whole or in part, of any Image as an artist's reference, as the basis for producing an artist's
illustration, or for producing a comp, layout or presentation to a customer. Further,
"reproduction" is specifically understood by you and us to include the display of an Image on
an Internet web site.
"Digital Medium" means a digital format such as a floppy disk, fixed hard disk, compact disk
("CD"), e-mail, etc. containing Images that have been converted into digital files and provided
to you by us subject to these Terms and Conditions.
"Text" means any words, information or data comprising a caption, extended caption,
keywords or any other words in written or digitally stored or transmitted format that we may
offer either for the purpose of Reproduction or for the purpose of providing specific information
about an Image.
"Non-transferable" means that the work you produce using our Images must be for your own
use, or for the use of your direct employer, client, or customer, i.e.,the end-user of your work.
You may not sell, rent, loan, give, sub-license, or otherwise transfer to anyone our Images or
the right to use the Images and nothing you produce shall grant or purport to grant to any
third party a right to use or reproduce the Image(s). You agree to take all commercially
reasonable steps to prevent third parties from reproducing or distributing the Image(s),
including affixing a copyright/credit line as described in Clause 9 below and implementing
appropriate security protection and compliance procedures.
B. Copyright Notice:
(i) Our Images are protected by copyright. All rights to the Images are owned by the Creators
and licensed by the THE GAILANS COLLECTION. A copyright and credit line must be included
with the reproduction of our Images in the following format:
(a) If non-editorial use, you agree to provide copyright protection by placing proper
copyright notice on any use. Proper use may be either "copyright Client Name"
(which protects the whole and all of its component parts) or "copyright Creator’s
Name/THE GAILANS COLLECTION" adjacent to or within the Image(s) (which protects
the pictures themselves);
(b) If editorial use, you agree to provide a credit line in the form "copyright Creator’s
Name/THE GAILANS COLLECTION" in type no smaller than that of related text, such
credit line to appear adjacent to or within the Image(s).
(ii) Since it is difficult to quantify the loss or damage incurred by us and our Image Creators
due to an incorrect or missing copyright and credit line you agree that a reasonable amount of
liquidated damages payable by you to us if the copyright/credit line is omitted or incorrect is
50% of the fee specified in our Invoice/Copyright Licence.
(iii) The Creator of the Image(s) hereby asserts his or her rights to be identified as author of
the works in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act
1988.
C. Rights Granted:
(i) Paid licence.
THE GAILANS COLLECTION grants you a perpetual, non-exclusive and non-transferable licence
to use the Image(s) only as provided in this Agreement.
(ii) Comp Use
THE GAILANS COLLECTION grants you the non-exclusive and non-transferable right to use
Image(s) for Comp Usage for a period not to exceed thirty (30) days.
D. Number of Users (defined above):
You are granted a ten (10) user single use, seat licence for use of the images. this is not a
simultaneous use licence. Only one (1) User may access or use the Image(s) at one time with
up to a maximum of ten (10) Users (within the same legal entity entering into this Agreement)
who may access or use the Image(s).
The Licensee may distribute Image(s) within a network or similar asset management system
to no more than ten (10) computers/workstations within the same company or legal entity for
use by one (1) person at a time. If the Image(s) are to be placed on a network server
accessible by more than ten (10) computers/workstations, please contact us as you will
require a multiple seat licence.
E. Permitted Uses.
You may, subject to Section 1(F) below:
(i) Back up, and store, single Image(s) as necessary on a single server for archival, tracking
or asset management purposes only. Any copy or archive you make must include copyright
notice pursuant to Section G(iii).
(ii) Use the Image(s) in any print or electronic media (except in computer software and
electronic video and computer games which require a separate licence - see Section F(ix)
below), including advertising and editorial use, provided such use is not intended to allow the
re-distribution, re-use of the Images(s) or access to the Image(s) apart from a product or
service.
(iii) Use the Image(s) on product packaging or in any items for personal use or resale,
including book covers, calendars, consumer merchandise (e.g. T-shirts, mugs, mouse-mats
etc.), except in computer software and electronic video and computer games, which require a
separate licence (see Section F(ix) below), provided such use is not intended to allow the re-
distribution, re-use of the Image(s) or access to the Image(s) apart from a product or service.
(iv) Modify or alter the Image(s) as necessary for your use, subject to the terms of Section
4, and provided that if such modification or alteration constitutes a derivative work you do not
acquire any copyright ownership or equivalent rights in or to any of the Image(s) or any other
property of THE GAILANS COLLECTION or its Image Creators and you shall only use such
derivative work in accordance with this Agreement. If requested by THE GAILANS
COLLECTION, you agree to execute a written assignment of any such rights, including
copyrights, at no cost to THE GAILANS COLLECTION.
(v) Use the Image(s) as design elements in video, film, or television broadcasts.
(vi) Use the Image(s) in connection with your business or entity, e.g. corporate identity
documents and letterhead, except as prohibited below - see section F(vi).
(vii) Use the Image(s) for any other uses approved in writing by THE GAILANS COLLECTION.
F) Prohibited Uses.
You may not:
(i) Sublicense, distribute, transfer or assign rights to the Image(s).
(ii) Reverse engineer, decompile, translate, or disassemble any part of the Image(s).
(iii) Copy or reproduce the Image(s), except as specifically provided for in Section 1(E).
(iv) Remove any copyright, trademark or watermark from any place where it appears on the
Image(s).
(v) Display the Image(s) in any digital format or for any digital use at a resolution greater
than 72 dpi, except in editorial or preliminary design work. Doing so will be viewed as an
attempt to distribute the Image(s) in violation of this Agreement.
(vi) Use the Image(s), or any part of the Image(s), as part of a trademark, service mark, or
logo. THE GAILANS COLLECTION or its Image Creators retain the full rights to the Image(s),
and therefore you cannot establish your own rights.
(vii) Use the Image(s) to compete with THE GAILANS COLLECTION. THE GAILANS
COLLECTION is in the business of licensing images to its customers. It is the specific intent of
this provision to prohibit you from using the Image(s) to enter, either directly or indirectly, a
similar or competing business.
(viii) Use the Image(s) in a product or service whereby the Image(s) can be used apart from
a product or service.
(ix) Use the Images(s) as part of a product in any electronic format intended for multiple
distribution or licensing including, without limitation, templates, Web site templates, software
products, including computer and/or video games and game consoles, e-greetings, etc.
Contact us to find out about a special licence for such use.
(x) Use the Image(s), or resell the Image(s), for use in mobile or wireless devices, including
but not limited to mobile telephones, handheld game consoles, and PDAs.
(xi) Use the Image(s) in any way that could be considered defamatory, pornographic,
libelous, immoral, obscene or fraudulent, or illegal, either by making physical changes to it, in
the juxtaposition to accompanying text or images, or otherwise.
(xii) Without advance written consent from THE GAILANS COLLECTION and any model in
such Image(s), use Image(s) that include people as part of any sensitive subject matters, as
determined by THE GAILANS COLLECTION. Sensitive subject use pertains to both commercial
and editorial uses. Availability of model releases does not grant the right to use Image(s) in
any sensitive subject matters.
(xiii) Use the Image(s) beyond any limitations or restrictions noted on a THE GAILANS
COLLECTION Website.
G. Additional Terms:
(i) It shall be presumed by us that the Images we supply to you on CD, or by email, have
been received in good, useable condition unless you notify us otherwise within 5 business days
of receipt of the Image files.
(ii) THE GAILANS COLLECTION reserves the right to (i) not permit use of any Image(s) for
any reason whatsoever; and (ii) notify you that certain Image(s) are no longer available for
use. Upon such notification, the licence to use such Image(s) shall automatically and
immediately terminate.
(iii) All other rights not expressly granted to you are reserved solely for THE GAILANS
COLLECTION.
(iv) THE GAILANS COLLECTION reserves the right to replace Image(s) with an alternative
Image for any reason. Upon notice of such replacement, the licence for the replaced Image(s)
immediately, and automatically, terminates for any use of the Image(s) that does not already
exist, and this Agreement shall automatically apply to any replacement Image(s). You agree
not to use any replaced Image(s) with future products or services and you shall take all
reasonable steps to discontinue use of the replaced Image(s) in existing products or services.
2. PAYMENT TERMS
A. Invoicing
Customers who have established an account in good standing with the THE GAILANS
COLLECTION have the option of receiving an Invoice for their use of our high-resolution
Images. However, until such an Invoice is issued to you for the applicable licence fee for the
use of our high-resolution Images neither party is committed to grant or to use any
Reproduction rights in any of our Images. After an Invoice/Copyright Licence has been issued
and subsequently paid by you, you are granted specific reproduction rights – see sections E
and F above - and you may then use the Images, subject to these Terms and Conditions.
B. Payment
(i) Time is of the essence in the performance of your obligation to pay our Invoice/Copyright
Licence. You only have the right to reproduce our Images when our Invoice/Copyright Licence
has been paid in full. Therefore, you agree to pay our Invoice/Copyright Licence within 28 days
of issue.
(ii) Any Reproduction by you before payment of the relevant Invoice/Copyright Licence
constitutes an infringement of copyright and a breach of this Agreement, thus entitling us to
rescind the Invoice/Copyright Licence and rendering you liable for the payment of damages.
NO RIGHTS OF REPRODUCTION ARE GRANTED UNTIL PAYMENT IS RECEIVED BY THE GAILANS
COLLECTION.
(iii) If payment is not made by you in accordance with section 2.A and B above then we may
revoke the applicable Invoice/Copyright Licence and recover damages or, at our option, we
may charge interest to you on the overdue amount at 4% above the official dealing rate of The
Bank of England per annum on the outstanding balance.
(iv) All sums required to be paid to us under these Terms and Conditions are expressed net of
Value Added Tax (and any equivalent or substitute tax), which (if and to the extent payable on
such sums) shall be paid by you.
3. TERMINATION
A. This Agreement is effective until it is terminated.
(i) This Agreement will terminate automatically, without notice from THE GAILANS
COLLECTION, if you fail to comply with any provision of this Agreement.
(ii) You can terminate the licences granted under this Agreement with respect to any
Image(s) by destroying the Image(s), along with any copies or archives, any CD-ROM or
accompanying materials (if applicable), and ceasing all use of the Image(s) for any purpose.
Such termination may not effect payment obligations.
B. THE GAILANS COLLECTION may, at its sole discretion: (i) monitor, as frequently as THE
GAILANS COLLECTION determines, anything you download from our Web sites, (ii) limit
downloads to a fixed amount of downloads per 24 hour period so as to ensure the best
possible service to all subscribers to our Web sites, (iii) track any abuse of your username and
password, (iv) suspend or terminate your account, without notice, if THE GAILANS
COLLECTION believes there is a violation of this Agreement, the Web Site User Agreement
and/or any abuse of your username and password.
C. Upon termination of the licence to use any Image(s) granted under this Agreement, you
agree to (i) destroy all copies and archives of the Image(s), (ii) cease using the Image(s) for
any purpose, and (iii) confirm to THE GAILANS COLLECTION in writing that you have complied
with these requirements.
4. WARRANTY AND LIMITATION OF LIABILITY
A. THE GAILANS COLLECTION represent and warrants that:
(i) It has the right to enter into this Agreement and to grant the rights hereunder;
(i) The Image(s) or other Digital Media (if applicable) will be free from defects in materials
and workmanship under normal use for a period of 30 days from the date of licence; and
(iii) The Image(s) as provided hereunder, and used as permitted herein, will not infringe any
copyright, trademark, moral right, right of privacy or any other intellectual property right of
any third party.
B. DISCLAIMER OF WARRANTY. EXCEPT AS PROVIDED IN SECTION 4(A) ABOVE, THE
IMAGE(S), DIGITAL MEDIA AND ACCOMPANYING MATERIALS (IF APPLICABLE) ARE PROVIDED
"AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A
PARTICULAR PURPOSE. THE GAILANS COLLECTION MAKES NO WARRANTIES FOR ANY
IMAGES THAT HAVE BEEN MODIFIED OR ALTERED BY YOU AND YOU SHALL BE SOLELY
RESPONSIBLE FOR ANY CLAIMS RELATING TO OR ARISING OUT OF YOUR MODIFICATION AND
USE OF THE IMAGES. THE GAILANS COLLECTION GRANTS NO RIGHTS OR WARRANTIES WITH
RESPECT TO THE USE OF NAMES, TRADEMARKS, LOGO TYPES, COPYRIGHTED DESIGNS OR
WORKS OF ART OR ARCHITECTURE DEPICTED IN ANY IMAGE, AND THE USER MUST SATISFY
ITSELF THAT ALL NECESSARY RIGHTS, CONSENTS, OR PERMISSIONS AS MAY BE REQUIRED
ARE OBTAINED. THE GAILANS COLLECTION DOES NOT WARRANT THAT THE IMAGE(S), WEB
SITES OR OTHER MATERIALS, WILL MEET YOUR REQUIREMENTS OR THAT USE WILL BE
UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE AND
USE OF THE IMAGE(S) IS SOLELY WITH YOU. YOU UNDERSTAND THAT YOU SHOULD SEEK
COMPETENT COUNSEL BEFORE USING IMAGES ON OR IN CONNECTION WITH ANY GOODS OR
SERVICES OR FOR ANY OTHER COMMERCIAL PURPOSES. THE GAILANS COLLECTION SHALL
NOT BE LIABLE TO YOU OR TO ANY OTHER ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL,
INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER
DAMAGES, COSTS OR LOSSES ARISING OUT OF YOUR USE OF THE IMAGE(S), THE GAILANS
COLLECTION BREACH OF THIS AGREEMENT OR OTHERWISE, EVEN IF THE GAILANS
COLLECTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR
LOSSES. IN NO EVENT, SHALL THE GAILANS COLLECTION’S TOTAL AGGREGATE LIABILITY TO
YOU, OR TO ANY THIRD PARTY CLAIMING THROUGH YOU, ARISING OUT OF OR IN
CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE IMAGE(S) (WHETHER IN
CONTRACT, TORT OR OTHERWISE) EXCEED THE FEE PAID TO US FOR THE IMAGES.
C. You represent, warrant and covenant that:
(i) You are at least eighteen years of age and have the full right and authority to enter into
this Agreement on behalf of you and/or your company, employer or principal;
(ii) You do not reside in any country to which export of US products are prohibited or
restricted and you may not ship, transfer or export any of the Images into any country or use
any of the Images in any manner prohibited by any laws, restrictions or regulations;
(iii) You will not use the Image(s) in any way that is not permitted by this Agreement;
(iv) Your use of the Image(s) will not violate any applicable law or regulation of any country,
state, or other governmental entity;
(v) The information that you provide to THE GAILANS COLLECTION is accurate and true,
including, without limitation, all credit card or other payment information and you shall update
such information as necessary;
(vi) You are solely responsible for determining whether your use of any Image(s) requires
the consent of any other party or the license of any additional rights. If you are unsure
whether additional rights are needed for your use of the Images, you are responsible for
consulting with competent legal counsel;
(vii) If you are acting as an agent, you must inform your client/principal of the terms of this
Agreement.
5. LIMITATION OF REMEDIES
A. Replacement or Refund:
THE GAILANS COLLECTION entire liability and your exclusive remedy, with respect to any
claims arising out of this Agreement, except as set out in Section 6 below, shall be at THE
GAILANS COLLECTION sole discretion, either: (i) replacement of Image(s); or (ii) refund of
any fee paid for the specific Image(s).
6. INDEMNIFICATION
A. You agree to indemnify and hold THE GAILANS COLLECTION, its affiliates, parents,
subsidiaries, employees, directors, officers, successors, assigns, distributors and anyone else
associated with THE GAILANS COLLECTION, harmless from, and against, any and all claims,
liabilities, costs, damages, or expenses, (including attorneys’ fees) asserted against THE
GAILANS COLLECTION arising out of your use of the Images or in connection with any breach
of any of the terms of this Agreement.
B. Provided that the Image(s) are used only in accordance with this Agreement and you are
not otherwise in breach of this Agreement, THE GAILANS COLLECTION shall defend, indemnify
and hold you harmless from all damages (excluding punitive damages), liabilities and expenses
(including reasonable attorney’s fees and authorized costs), arising out of or in connection with
any actual or threatened lawsuit, legal proceeding or claim alleging that THE GAILANS
COLLECTION is in breach of its warranties set out in Section 4 above. The foregoing states
THE GAILANS COLLECTION’ entire indemnification obligation under this Agreement and your
sole and exclusive remedy for any actual breach of THE GAILANS COLLECTION’
representations and warranties set forth herein. THE GAILANS COLLECTION shall have no
obligation under this Section 6 unless you promptly provide THE GAILANS COLLECTION with
written notice of such claim. THE GAILANS COLLECTION shall have no liability or duty to
indemnify if the claims, liabilities, costs, damages, or expenses result from: (i) the modification
or alteration of the Images by anyone other than THE GAILANS COLLECTION or (ii) the
combination of the Images with any other text or graphic material, whether in printed or
electronic format, to the extent that such any claims would not have arisen had such
modification or combination not been made.
C. At the indemnifying party’s option, the indemnifying party may assume the handling,
settlement or defense of any claim or litigation and the indemnified party shall reasonably
cooperate in the defense thereof. The indemnified party shall have the right to participate in
the litigation, at its own expense, through counsel selected by the indemnified party. The
indemnifying party will not be liable for legal fees or other costs incurred prior to the
indemnified party giving notice of the claim for which indemnity is sought.
7. GENERAL
A. Enforceability.
If any provision of this Agreement is held to be not enforceable, such
provision shall be reformed only to the extent to make it enforceable, consistent with the
parties’ intent.
B. Taxes and other.
You agree to pay and be solely responsible for any and all sales taxes,
use taxes, value added taxes and duties imposed by any jurisdiction as a result of the licence
granted to you, or your use of the Image(s), pursuant to this Agreement.
C. Waiver.
No action of THE GAILANS COLLECTION, other than an express written, signed
waiver may be construed as a waiver of any part of this Agreement, and no employee of THE
GAILANS COLLECTION is authorized to make an oral waiver. In the event that THE GAILANS
COLLECTION waives a specific part of the Agreement, it does not mean that THE GAILANS
COLLECTION waives any other part.
8. INTERPRETATION, GOVERNING LAW & DISPUTES
(a) These Terms and Conditions, as well as any disputes or claims arising under or relating to
this Agreement, shall be governed by, and construed in accordance with, the laws of England.
Disputes arising under this Agreement shall be exclusively subject to the jurisdiction of the
courts of England. Notwithstanding the foregoing, however, THE GAILANS COLLECTION shall
have the right to commence and prosecute any legal or reasonable action or proceeding before
any non-English court of relevant jurisdiction to obtain injunctive or other relief in the event
that, in the opinion of THE GAILANS COLLECTION, such action is necessary or desirable.
(b) This Agreement shall not be governed by the United Nations Convention on Contracts for
the International Sale of Goods, the application of which is expressly disclaimed.
9. LEGAL FEES
You agree to reimburse THE GAILANS COLLECTION for its legal fees, costs and disbursements
if THE GAILANS COLLECTION is successful in enforcing any of its rights under this Agreement
including, without limitation, in connection with any action to collect payment.
10. ASSIGNABILITY
You may not assign or transfer to anyone else the rights granted to you in this Agreement,
without our prior written consent. THE GAILANS COLLECTION may assign or transfer this
Agreement freely.
11. CANCELLATION
If you wish to cancel the rights granted in this Agreement and your invoice, the following
apply:
(a) If You Licensed Single Images or Purchased CD(s) (opened or unopened), you may
receive a full refund if you submit a completed and signed refund affidavit and return any CD’s,
within fourteen (14) days of your invoice date. After fourteen (14) days, no cancellations will
be accepted, no refunds made and you will be responsible for and must pay the full amount of
the invoice.
(b) You are solely responsible for all shipping and handling fees with regard to a
cancellation. All cancellations are final. See Termination Section 3 above for other applicable
terms.
12. ENTIRE CONTRACT
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE
TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE
COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND THE
GAILANS COLLECTION, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR
WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND THE GAILANS COLLECTION
RELATING TO THE SUBJECT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY
PURCHASE ORDER TERMS (EVEN IF SUCH TERMS ARE SUBSEQUENT TO THE DATE OF THIS
AGREEMENT). FAQ'S, OTHER EXPLANATIONS, AND TEXT IN THE GAILANS COLLECTION WEB
SITE ARE FOR YOUR INFORMATION ONLY AND ARE NOT, AND SHALL NOT BE CONSTRUED AS,
PART OF THIS AGREEMENT UNLESS SPECIFIED OTHERWISE IN THIS AGREEMENT.
