Terms and Conditions

Purchase Agreement

Updated: 7th January 2020

This purchase agreement is a legal agreement between you and Gary F. Smith Photography operated by Gary F. Smith and has been created to provide information to visitors to our website that explains how images that you purchase through www.garyfsmithphotography.com can be used. We ask that you read this agreement carefully and in its entirety, as you will need to accept these terms in order to make a purchase.

Intellectual Property Rights
All images and associated metadata (collectively ‘contents’) are owned by Gary F. Smith. All rights not expressly granted in this agreement are reserved by Gary F. Smith.
No ownership, or copyright in any image shall transfer to you by the issue of a purchased print or License. You acknowledge that, any intellectual property rights remain with Gary F. Smith.

Products offered by Gary F. Smith Photography
i. Prints
Print options available include the print types; Hahnemühle fine art, professional prints or canvas wraps. The cost of your print is calculated based on the available print options with each product. Shipping costs are reflected at the time of checkout.
Hahnemühle fine art and professional prints are shipped unframed and unmounted to allow you to frame and mount your purchase to your preferred tastes. Canvas wraps are shipped ready to hang.
All prints are produced by ‘One Vision Imaging’ our professional printing lab, who will ship your order directly to you.

ii. Licenses
Two license models are available:
a) Royalty-Free (RF)
Two license types exist under royalty-free: standard or extended. You pay a flat, one-time fee based on ‘standard’ or ‘extended’ content for a set of rights to use the image in multiple ways, pricing is based on file size and content is for worldwide and perpetual use. Refer to clause 3.2 ‘Restrictions for RF Standard Content’
b) Rights-Managed (RM)
Images under a rights-managed license are for specific types of use and pricing is based on factors including but not limited to size, medium, placement, duration and geographical location.

iii. Comping License
Corporate users with a registered account are welcome to use low-res, watermarked images on a complementary basis for test or sample use. Image cannot be used for any final material unless a license is purchased and may only be used for thirty (30) days following download. No warranties or rights are granted for comping use.

License Information
All licensed content are offered on a Non-Exclusive basis, meaning Gary F. Smith can license the same image to other clients. If you are interested in purchasing exclusive image rights for rights-managed content only please contact Gary F. Smith for availability.
All licensed content are labelled: Commercial or Editorial, and are marked on the image page. This determines whether you can use the image to sell or promote a product or service.
Examples of licensed content usage includes: advertisements, marketing campaigns, promotional material, websites, blog posts, social media, corporate presentations, newspapers, magazines, books, web applications and product packaging. Please refer to Section 3 ‘Restricted Uses’.
Please note that not all images are offered for licensing and that there may be similar images to the image that you have licensed. Nothing in this agreement excludes Gary F. Smith from licensing similar images to other clients.
You do not need to include a credit line for commercial use, however if any image is reproduced for editorial (non-promotional) purposes then you must include the following photo credit line adjacent to or in production credits in the form of: “Gary F Smith / [Genre Name] / ©YYYY”

Online transactions are conducted via Stripe or PayPal; both payment service providers are well-established and provide a secure payment process and most major credit / debit cards are accepted. Payment is due on checkout and is directed to either Stripe or PayPal on their secure servers. All personal payment information is securely kept. Refer to our privacy policy for more information. Issues relating to Stripe or PayPal 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 but not limited to copyrights, trademarks, service marks, trade names, symbols, logos and designs
‘Invoice’ - The computer-generated invoice, may include but not limited to, details of the image selected, any limitations on the license, the key terms and the corresponding price for the license or print, personal information such as name and address including shipping costs (if applicable)
‘Licensee’ - means the person or entity purchasing a license hereunder
‘Reproduction’ - includes any form of copying, editing or modification, 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

2. Prints
Online print purchases are for a printed copy of your chosen image and shall remain the property of Gary F. Smith. 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. Requests for refunds or replacements for damaged prints received more than seven (7) days after delivery will not be accepted. Refer to www.onevisionimaging.com/info/terms.

3. Restricted Uses
3.1. Restrictions for all Licensed Content
3.1.1. 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
3.1.2. You must not use any image that is marked ‘editorial’ for any commercial, promotional, advertorial, advertising or merchandising purposes (this license type is not model and/or property released) and is intended to be used only in editorial context
3.1.3. You must not incorporate the image (or any part of) into a logo, trademark or service mark
3.1.4. 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
3.1.5. 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
3.1.6. 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
3.1.7. You may not display any image in digital format at a resolution higher than 72dpi
3.1.8. You may not falsely represent that you are the original creator of a work that is made up of licensed contents

3.2. Restrictions for Royalty-Free Standard Content
Unless a royalty-free extended license is purchased
3.2.1. You may not use the image in connection with any goods or services intended for resale or distribution. This includes “on demand” products, meaning products selected by a third party for customisation on a made-to-order basis, including, without limitation, apparel items, cards, calendars, covers for books, eBooks and magazines includes entertainment goods such as CD’s or DVD’s, mugs, posters, stationery, t-shirts or other items
3.2.2. You may not use the image in electronic or digital templates intended for resale or distribution, for example, website, business card, electronic greeting card or brochure design templates
3.2.3. You may not reproduce the image more than 500,000 times in physical print form. This restriction does not apply to electronic reproduction
3.2.4. You may not store the image on a drive or network with shared access: however, you may make the image available for viewing by your employees, clients and subcontractors

4. License Grants
You may use licensed content in any way that is not restricted. Subject to those restrictions in section 3 and the rest of the terms of this agreement the rights granted to you are

4.1. For all Licensed Royalty-Free and Rights-Managed Content
4.1.1. The rights granted to you are non-exclusive (unless otherwise stated on the Invoice or in a separate agreement); non-sub licensable and non-transferable, meaning you cannot sublicense or transfer the image to anyone else. There are two exceptions:
a) If you are purchasing on behalf of your employer or client, then your employer or client can use the image. It is your responsibility to ensure your employer or client understands and agrees to be bound to the terms of this agreement, if you do not have that authority to bind your employer/client, then your employer/client may not use the image. The rights purchased may only belong to you or your employer/client, depending who is named as the ‘licensee’ at the time of purchase.
b) You may allow subcontractors (e.g. your printing or mailing house) or distributors to use the image 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 image for any other purpose
4.1.2. Any image stored or shared by you, must retain any Gary F. Smith source credit, copyright notices, image file identification references and any other information as may be invisibly embedded or visibly provided within the original electronic image file

4.2. For Rights-Managed Only Content
4.2.1. Your 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. 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. When your license period as set out in the invoice ends, you must promptly delete the image from your computer and any other electronic storage system

4.3. For Royalty-Free Standard Content as marked for ‘Commercial’ or ‘Editorial’ use on your Invoice
4.3.1. You may allow up to five (5) individuals (total, not at any given time) to use the content and all individuals must be employed by the same legal entity. Refer to sub-clause 3.2.4 On storage restrictions

4.4. For Royalty-Free Extended Content as marked for ‘Commercial’ or ‘Editorial’ use on your Invoice
4.4.1. The image may be stored and shared by creating an image library, network configuration or similar arrangement and an unlimited number of users may use the content so long as the individuals are employed by the same legal entity

4.5. For all Royalty-Free Content as marked for Commercial use on your Invoice
Gary F. Smith grants to you, subject to sub-clause 4.1.1 the rights to reproduce the image on a worldwide and perpetual basis solely as part of the following;
4.5.1. Advertising and promotional materials (including packaging)
4.5.2. Online or other electronic distribution systems (including web page design), but subject to sub-clause 4.1.2 and up to a maximum resolution of 72dpi
4.5.3. Any products (including for sale products) or publications (electronic or print), subject to clause 3.2 and sub-clause 4.1.2.

4.6. For all Royalty-Free Content as marked for Editorial use on your Invoice
Gary F. Smith grants to you, subject to sub-clause 4.1.1 the rights to reproduce the image on a worldwide and perpetual basis solely as part of the following;
4.6.1. Online or other electronic distribution systems (including web page design) of editorial (non-promotional) nature, but subject to sub-clause 4.1.2 and up to a maximum resolution of 72dpi
4.6.2. Any editorial products or publications (electronic or print), subject to sub-clause 3.2.3 and sub-clause 4.1.2

5. User Accounts
You will be responsible for tracking all activity for each user account, and you will agree to (i) maintain the security of all passwords and usernames, (ii) notify Gary F. Smith immediately if you become aware of, or suspect that any third party has gained access to the image through you, is wrongfully using the image, in whole or in part and (iii) accept all responsibility for activity that occurs under each user account

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 confirm in writing to Gary F. Smith 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 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 remove 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 terms of this agreement

7. Representation and Warranties
7.1. Warranty of non-infringement; for all licensed content, 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 done by you) will not infringe on any copyright or moral rights of the owner
7.2. Warranties for Certain Content
7.2.1. Royalty-Free; for licensed content marked as ‘Commercial’, 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 done by you) will not infringe on any trademark or other intellectual property right, and will not violate any rights of privacy or publicity
7.2.2. Rights-Managed; for licensed content 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 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
7.3. Warranty Disclaimer; unless specifically warranted above, Gary F. Smith does not grant any or make any warranty 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. 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
7.4. 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
7.5. Gary F. Smith guarantees that should any image have defects in material or workmanship and these are notified in writing within fourteen (14) days from the invoice date then Gary F. Smith will either replace the image with another digital copy of the image free from defect or refund the license fee paid by you
7.6. No other warranty; Except as provided in this section above, 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 Photography 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

9. General terms
9.1. You should make sure that you examine the image for possible defects before sending the image for reproduction. Subject to clause 7.5, 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
9.2. The license will terminate immediately if you 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
9.3. The license 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 granted void from the beginning. Any use of in-copyright image in a manner not license 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 five (5) times the license fee for the unauthorised use of the image
9.4. 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
9.5. 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
9.6. 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
9.7. 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. When we make changes, we will revise the ‘updated’ date at the top of this agreement. We encourage you to review this agreement whenever you visit our site
9.8. Upon reasonable notice, you agree to provide Gary F. Smith sample copies of projects or end use of licensed images to ensure that the image is being used in accordance with this agreement
9.9. 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
9.10. 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 your use of the licensed image

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