Terms and Conditions

Purchase Agreement
Last Updated: 13th June 2019

This is a legal agreement between you (‘you’, ‘yours’) and www.garyfsmithphotography.com operated by Gary F Smith (‘our’, ‘we’, ‘us’).

Please read this agreement in full, as you will need to accept these terms in order to create an account and to place an order. No acceptance of these terms or an account is required to browse the contents, however, please refer to our cookie policy as cookies are used on our site.

Intellectual Property
All images are owned by Gary F Smith. All rights not expressly granted in this agreement are reserved by Gary F Smith.

Products
Most images are available to purchase as prints (excludes some panorama's) but not all are available for license. Price icons shown next to the image indicate its availability.

Hahnemühle Fine Art or Professional Prints
You select the product, support, size and paper type to calculate the print costs. All prints are shipped unframed and unmounted to allow you to frame and mount your purchase to your preferred tastes. Shipping costs are reflected at the time of checkout.
All prints are produced by ‘One Vision Imaging’ our professional printing
lab, who will ship your order directly to you.

Rights-Managed (RM) License
Are available for specific types of use and pricing is based on factors including but not limited to size, medium, placement, duration and geographical location. Rights-managed licenses are sold on a Non-Exclusive basis, meaning you do not have exclusive rights to use the image. Please contact Gary F Smith if you are interested in licensing a particular image on an exclusive basis.

Release Information
Not all images have releases, it is your responsibility to check that all necessary releases have been secured (see clause 7.2).

Payment
Online transactions are conducted via stripe. Stripe is a well-established and secure payment process and takes most major credit / debit cards. Payment is due on checkout and is directed to stripe on their secure servers; all personal payment information is secure. For more information refer to our privacy policy. Issues relating to payment and stripe should be directed to them in the first instance.

1. Definitions
The following terms have the stated meanings:

‘Image’ - the specific copy of the image you have selected from the website

‘Intellectual Property’ - All property, intellectual and moral rights, including all applications of, including but not limited to copyrights, trademarks, service marks, trade names, symbols, logos and designs

‘Invoice’ - The computer-generated invoice provided by Gary F Smith may include but not limited to, details of the image selected, any limitations on the Licence in addition to those specified herein, the key terms and the corresponding price for the Licence or print, personal information such as name and address including shipping costs (if applicable)

‘License’ - the non-exclusive (unless otherwise stated in the invoice) non-sub licensable and non-assignable right Gary F Smith grants you to use the image

‘Licensee’ - means the person or entity purchasing a license hereunder

‘Release’ - a model or a property release, which is deemed necessary or required in respect of any image

‘Reproduction’ - Includes any form of copying, alteration or manipulation, including publication of the whole or part of any image whether by printing or other display, electronic, digital or mechanical means

‘Terms’ - The terms and conditions set out in this agreement and include terms contained in the invoice. The terms contained in the invoice replace those in this agreement to the extent of any inconsistency

‘Website’ - the website operated by Gary F Smith

2. Prints
Online print purchases are for a printed copy of your chosen image and shall remain the property of Gary F Smith (see clause 5.1). Purchased prints may not be reproduced in any way.
All print orders are handled through our professional printing lab and as such we carry no stock of any image shown on our website, all prints are custom printed to order.
2.1. We ask that you ensure that you order the right print size to fit your wall space, taking into account your preferred mounting and framing arrangements, as under UK law ‘made-to-order’ products are exempt from the ‘internet distance selling rules’ and as such we do not accept refunds or returns if you have changed your mind for prints that are custom made-to- order.
2.2. Prints that arrive damaged may be returned for a full refund or replacement. All refunds/replacements must be made in writing quoting the invoice number and the photo ID number, together with details of the damaged print (a photo of the damaged print will be helpful) within seven (7) days from delivery. Prints will only be refunded or replaced once the original has been returned. Refer to www.onevisionimaging.com/info/terms. Requests for refunds or replacements for damaged prints received more than seven (7) days after delivery will not be accepted.

3. License Restrictions
3.1. You must not use the image in connection with or for pornographic, defamatory, fraudulent, lewd, obscene or in connection with the glorification of violence, racism, religious intolerance or other illegal manner, including but not limited to infringing any third party intellectual property or privacy rights, whether directly or in context with other materials
3.2. You must not use any image that is marked ‘editorial use’ for any commercial, promotional, advertorial, endorsement, advertising or merchandising purpose. This type of license is not model or property released and is intended to be used only in editorial context
3.3. You must not incorporate the image (or any part of) into a logo, trademark or service mark
3.4. If any image features a model 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) if the depiction of the model would be unflattering or unduly controversial to a reasonable person, you must indicate each such use with a statement indicating that the person is a model and the image is being used for illustrative purposes only. No disclaimer is required for editorial content that is used in a non-misleading manner
3.5. You may not make the image available, or sell, license or distribute the image in any way that is intended to allow or invite others to download, redistribute, extract or access the image as a standalone file, separate from the project or end use
3.6. Images when used in an editorial context may be cropped or otherwise edited for technical quality, provided that the editorial integrity of the image is not compromised and the truth of the image is maintained, and shall not under any circumstances be otherwise altered
3.7. You may not display any image in digital format at a resolution higher than 72dpi
3.8. You may not falsely represent that you are the original creator of a work that is made up of licensed contents

4. License Grants
You may use the licensed image in any way consistent with the rights granted below subject to those restrictions in section 3

4.1. For all RM Licenses
4.1.1. The rights granted to you are non-exclusive (unless otherwise stated on Invoice); non-sub licensable and non-assignable, meaning you cannot sub-license or transfer the contents to anyone else
4.1.2. Use of the image is strictly limited to the size, medium, duration, location and any other restrictions specified in the invoice. You may utilise the image in any production or distribution process related to your final project or end use as stated in the invoice

4.2 For all RM Licenses excludes RM Download License
4.2.1. You may store the image in a digital library, network configuration or similar arrangement to allow them to be viewed within your organisation and by your clients. You must retain any Gary F Smith source credit, copyright notices, image identification references and any other information as may be invisibly embedded or visibly provided within the electronic file containing the original image. When your Licence period as set out in the invoice ends, you must promptly delete the image from your computer or other electronic storage system.

4.3. For RM Download License only
4.3.1. The image may be shared by creating an image library or similar so long as only the licensee has access to the image. The image as stored and shared by you must retain any Gary f Smith source credit, copyright notices, image identification references and any other information as may be visibly embedded or visibly provided within the electronic file containing the original image. When your period as set out in the invoice ends, you must promptly delete the image from your computer or other electronic storage system.
4.3.2. The image may not be distributed by a mobile device in a way that would allow any third party to download, extract or access the image as a standalone file.

4.4. Rights-Managed Commercial Licence Usage:
4.4.1. Advertising and promotional materials (including packaging)
4.4.2. Online or other electronic distribution systems (including web page design), but subject to clause 4.2.1 up to a maximum of 72dpi
4.4.3. Any products (including for-sale products) or publications (electronic or print), subject to clause 4.2.1

4.5. Rights-Managed Editorial Licence Usage:
4.5.1. Online or other electronic distribution systems (including web page design) of editorial (non-promotional) nature, but subject to clause 4.2.1 up to a maximum of 72dpi
4.5.2. Any editorial products or publications (electronic or print), subject to clause 4.2.1.

4.6. Rights-Managed Download License Usage:
4.6.1. Online or other electronic distribution systems of a non-promotional nature, but subject to clause 4.3.1 up to a maximum of 72dpi
4.6.2. Any personal products of a non-commercial nature (electronic or print), subject to clause 4.3.1, not for resale

5. Credit and Copyright terms
5.1. No ownership, or copyright in any image shall transfer to you by the issue of either a purchased print or Licence.You acknowledge that, any applicable intellectual property rights remain with Gary F Smith.
5.2. If any image is reproduced by you for editorial purposes (i.e. non- promotional) you must include the following photo credit line adjacent to or in production credits: “Gary F Smith/[Genre]/©garyfsmithphotographyYYYY” You do not need to include the credit line for commercial use.
5.3. You will immediately notify Gary F Smith if you become aware or suspect that any third party has gained access to the image through you, is wrongfully using the image, in whole or in part, or is violating any of Gary F Smith’s or any third party intellectual property rights, including, but not limited to, trademarks and copyrights, as applicable.

6. Termination/Cancellation/Withdrawal
6.1. Termination; Gary F Smith may terminate this agreement at any time if you breach any of the terms of this or any other agreement, in which case you must immediately (a) cease using the image, and (b) delete or destroy any copies, and if requested, confirm to Gary F Smith in writing that you have complied with these requirements
6.1.1. Social Media Termination; If you use the image on a social media platform or other third party website and the platform or website uses (or announces that it plans to use) the image for its own purpose or in a way that is contrary to this agreement, the rights granted for such use shall immediately terminate, and in that event, you agree to remove any image from such platform or website
6.2. Cancellation; providing you have not used the image you can cancel the license and get a full refund within fourteen (14) days. All cancellations must be made in writing quoting the invoice number and the image photo ID number. No refunds are available for cancellation requests received more than fourteen (14) days from the invoice date. In the event of cancellation, your rights to use the image terminate, and you must delete or destroy any copies.
6.3. Withdrawal; Gary F Smith may delete any image from (a) the website or (b) withdraw licensed images at any time in its sole discretion or on a potential or actual legal claim
6.3.1. On notice from Gary F Smith, or upon your knowledge, that any image may be subject to a claim of infringement of a third party’s right for which Gary F Smith may be liable you must immediately and at your own expense cease using all future use of the image, delete or destroy any copies and ensure that your clients, distributors and/or employer do likewise. Gary F Smith will provide you free of charge a replacement, subject to this agreement

7. Representation and Warranties
7.1. Warranty of non-infringement; for licensed images marked as ‘commercial’, where Gary F Smith specifically notifies you that a model and/or property release has been obtained, Gary F Smith warrants that your use of the image in accordance with this agreement and in the form delivered by Gary F Smith (that is, excluding any modifications, overlays or refocusing done by you) will not, where a property release has been obtained, infringe on any trademark or other intellectual property right, and/or will not, where a model release has been obtained, violate any rights of privacy or right of publicity
7.2. Warranty Disclaimer; for licensed images marked as ‘Editorial’, Gary F Smith warrants that the image will not infringe on any copyright or moral right of the owner, and gives no representations or warranties whatsoever with regard to the use of names, people, trademarks, logos, designs, works of art or architecture depicted or contained in the image. In such cases, you are solely responsible for determining whether any release is/are required in connection with your proposed use, and you are solely responsible for obtaining such releases and the licence is conditional in each case on you obtaining them. If you are unsure as to whether any releases are needed for your image usage, then it is your responsibility to consult with relevant parties. You shall not rely upon any representation or warranties given by Gary F Smith as set out in this agreement. You acknowledge that no releases are generally obtained for images 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
7.3. Caption/Metadata Disclaimer; While Gary F Smith has made reasonable effort to correctly categorise, keyword, caption and title the images, Gary F Smith does not warrant the accuracy of such information, or any metadata provided with the image
7.4. Gary F Smith guarantees that should any image have defects in material or workmanship and these are notified in writing to Gary F Smith within fourteen (14) days from the date of delivery of the image then Gary F Smith will either replace the image with another digital copy of the image free from defect or refund the licence fee paid by you to the extent attributable to the defective image, at Gary F Smith’s option
7.5. No other warranty; Except as provided in clause 7.1, the image 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. Gary F Smith does not warrant that the image or its website will meet your requirements or that the image or website will be uninterrupted or error free

8. Indemnity/Limitations of Liabilities
8.1. You agree to indemnify and hold Gary F Smith harmless against any damages, liabilities and expenses or costs (including reasonable outside legal fees) arising in any manner whatsoever from (i) your use of any images 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 and (iii) your failure to obtain any required releases for your image use
8.2. Limitations of Liability; GARY F SMITH WILL NOT BE LIABLE TO YOU OR ANY
OTHER PERSON OR ENTITY FOR ANY LOST PROFIT, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF GARY F SMITH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY

9. Data Privacy
We will collect and process personal information submitted by you or collected by us to provide services related to this agreement in accordance with our privacy policy

10. General terms
10.1. You should make sure that you examine the image for possible defects before sending the image for reproduction. Subject to clause 7.4, Gary F Smith shall not be liable for any loss or damage suffered by you or any third party arising from any alleged or actual defect in any image or its caption or in any way from its reproduction.
10.2. The licence will terminate immediately if you (a) enter into voluntary or compulsory liquidation, (b) have a receiver appointed or (c) fail to perform any of your obligations under the agreement. In the event of termination, all rights granted will immediately return to us and any further use of any image may constitute an infringement of copyright and/or other intellectual property rights.
10.3. The licence is conditional on you not being aware of or having received, prior to licensing any image, any correspondence, representations, complaints or claims from Gary F Smith or third parties (collectively ‘claims’) alleging that the image in question is in breach of copyright or other third party intellectual property rights or is in some other way unauthorised. Any such claims existing at the time the image is purported to be licensed will render any licence granted void from the beginning. Any use of in-copyright image in a manner not expressly authorised by this agreement may constitute copyright infringement, entitling Gary F Smith to exercise all rights and remedies available to it under copyright laws around the world. You shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party. In addition and without prejudice to Gary F Smith's other remedies under this agreement, Gary F Smith reserves the right to charge and you agree to pay a fee equal to up to three (3) times the licence fee for the unauthorised use of the image.
10.4. No action of Gary F Smith or you, other than an express written waiver, may be construed as a waiver of any clause of this agreement.
10.5. Should any clause of this agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining clauses should not be affected and will remain in force.
10.6. This agreement, its validity and effect, shall be interpreted under and governed by the laws of England and be subject to the exclusive jurisdiction of the English courts. If Gary F Smith is required to enforce its rights as a result of any breach of these terms, whether legal proceedings are commenced or not, you agree to indemnify Gary F Smith in respect of all reasonable legal fees and costs incurred by Gary F Smith in relation thereto.
10.7. We reserve the right to update this agreement from time to time to the nature of and/or the way in which we provide our services and, in consequence, to make variations and revisions to these terms
10.8. All notices sent to Gary F Smith under this agreement should be sent via email to info@garyfsmithphotography.com. All notices to you will be sent via email to the email set out in your account
10.9. You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the licensed image
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