This is a contract between Fotocrats and you (“the Contributor”). Sepia Advertising Pvt. Ltd. maintains www.fotocrats.com (“Fotocrats”), engaged in the business of online portal containing images, photographs, video and other media content (“Content”). Registered users (“Members”) can browse and purchase and license content material from www.Fotocrats.com. Members can also elect to become content contributors (“Contributors”), which allows said Contributors to upload image files for the purpose of allowing Fotocrats to act as agent for licensing image rights to other users and third parties. Fotocrats in its sole discretion shall determine which of such Content is suitable for posting on the Site or other means of distribution, and only such Content as it deems suitable will be considered as “Accepted Content” for the purposes of applicable provisions of this Agreement. By registering you accept that a legally binding contract has been entered between you and Fotocrats on the terms and conditions as set out in the said Agreement.
1. The Contributor wishes to appoint Fotocrats as its non-exclusive agent to license, sub-license and distribute Content produced by the Contributor on the terms and conditions of this Agreement, Fotocrats's License Agreement, as such Agreement may be amended from time to time or modified for certain clients consistent with the rights granted herein (“The License Agreement”), or any other distribution partner license agreement and as per the terms and conditions of this Site. For the purposes of this Agreement, License Agreement shall be deemed to include all of the Extended License options and provisions to which Contributor has opted in using his or her account profile on the Site.
2. By uploading Content, Contributor agrees to give Fotocrats and all users the irrevocable, non-exclusive, perpetual, royalty-free rights to use the Content for any purpose including but not limited to license, distribute, publication, display, modification, alteration, creation of derivative works, or products. Contributor also grants Fotocrats the right to use the Content for any and all promotional purposes. Fotocrats shall have the right to license any Content up until the time Contributor removes the Content from the Site. Once the Contributor uploads the Content on to the Site, the Contributor cannot remove the Content from the Site for a period of at least 180 days. Contributor has to give Fotocrats the opportunity to license and use the Content for at least 180 days. The Contributor agrees that Fotocrats and licensee shall have the right to use such Content which has been licensed to the licensee prior to the removal of the Content by the Contributor.
3. By uploading Content on Fotocrats the Contributor warrants that the content cannot be uploaded on any “Micro Stock Site”. Under this Agreement the Contributor is strictly prohibited to upload similar Content on any other Micro Stock Site. In the event the Contributor is found in breach of this clause, the Agreement shall be terminated immediately and the Contributor would also be liable to compensate Fotocrats for the breach.
4. This Agreement remains in full force and effect until terminated in accordance with its terms and conditions. If at any time the terms and conditions of this Agreement are no longer acceptable to the Contributor, the Contributor must follow the termination procedures set forth below under the “Termination” clause set below.
5.1. The right to use, reproduce, distribute, redistribute, license, sublicense, publish, republish, upload, post, transmit, crop, package, repackage, produce and sell prints or similar image products or publicly perform or display Content to prospective licensees (i) through the Site; (ii) through affiliated or associated companies of Fotocrats and Sepia Advertising Pvt. Ltd.; (iii) through third party distributors and alliance or channel partners of Fotocrats or Sepia advertising.
5.2. To add the images to one or more of its databases, including but not limited to Fotocrats and other affiliates and subsidiaries databases.
5.3. The right to grant perpetual, world-wide, non-exclusive, non-transferable licenses or sub-licenses to end-users in accordance with the terms of the License Agreement, as such Agreement may be amended from time to time or modified for certain clients consistent with the rights granted herein or any distribution partner license agreement provided that such agreement is consistent with rights granted to Fotocrats herein.
5.4. Contributor grants the right to alter the Content including cropping, manipulation, combining and creation of derivative images. Contributor also undertakes that the person who created the Content has waived all moral rights in respect of use of the Content pursuant to this Agreement by Fotocrats, its customers or any third parties.
5.5. Contributor grants the right to use the Content without charge and without prior consent from Contributor in promotional and marketing material. Contributor agrees that any such promotional items may be distributed by Fotocrats worldwide for upto two years, notwithstanding the earlier termination of the Agreement for any reason. Promotional and marketing material also includes but not limited to search engine listings and Google images.
6.1. The Parties agree that all rights, including title and copyright, in and to the uploaded Accepted Content shall be retained by the Contributor, and no title or copyright is transferred or granted in any way to Fotocrats or any third party except as provided in this Agreement and the License Agreement. Under the Agreement Fotocrats's affiliates, associated companies or as specifically permitted in this Agreement, shall have the right to distribute the Content for the purposes of licensing, sale, resale or re-license.
6.2. Fotocrats prohibits any Content or any other material that infringes on any copyright, trademark, patent, and trade secret, right to privacy, right to publicity, obscenity or pornographic or any other applicable law or proprietary right to be uploaded to the Site.
6.3. The Contributor guarantees and warranties that the Contributor owns all proprietary rights, including copyright, in and to the Content. The Contributor further warrants that for any image files or photograph containing people and other person’s property, they have obtained the necessary and binding model release and property release. If the Contributor does not have a model or property release for the Content that contains an image or images of an identifiable person or property, Fotocrats may choose to accept the Content for so called editorial use at Fotocrats’s sole discretion. The Contributor agrees that he is solely responsible for retaining all original model and property releases and maintaining complete and accurate model and property records. Model and property releases are to be electronically submitted to Fotocrats along with the submitted Content. The submission of fabricated, inaccurate or otherwise defective model and property releases is a material breach of this Agreement and shall result in the immediate termination of Contributors account without prior notice. The model and property release presented by the Contributor shall be in line and in the same format as present at Model Release Form.
6.4. The Contributor agrees that neither Fotocrats nor any of its directors, officers, employees, partners, affiliates, associated companies or agents shall be liable for any damages, whether, direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Content.
6.5. Nothing contained herein grants or shall be construed to grant the Contributor any rights to use any of Fotocrats's, its affiliates and associated companies trademarks, logos, service marks, trade names, internet domain names, or other indications of origin used by Fotocrats now or in future. In connection with the use of www.Fotocrats.com , Sepia Advertising or any other Fotocrats's trade names, trademarks, logos or service marks (''Marks''), Contributor acknowledges and agrees that (a) Fotocrats marks are and shall remain the sole property of Fotocrats, (b) nothing in this Agreement shall confer upon Contributor any right of ownership in Fotocrats Marks, (c) Contributor may not use, register, or assist others in using or registering any trademarks, trade names, logos, internet domain names, or any mark or name confusingly similar to Fotocrats Marks or belonging to Fotocrats without Fotocrats prior written consent, (d) Contributor shall not now or in the future contest the validity of Fotocrats Marks nor will oppose or assist others in opposing any registration of any of the Fotocrats Trademarks and (e) Contributor is not allowed to use any Marks of Fotocrats in connection with any of his Works. All goodwill accruing to the Fotocrats Trademarks under this Agreement shall belong to Fotocrats.
6.6. Contributor agrees not to use Fotocrats's trademarks in any manner that might tarnish, disparage, or reflect adversely on such trademarks or Fotocrats. Nor will the Contributor contest or otherwise challenge (e.g., in any legal action or otherwise), or assist or encourage any other person or entity to contest or challenge, the validity of any of Fotocrats trademarks or the trademarks rights claimed by Fotocrats.
6.7. Contributor agrees not to use any Fotocrats trademarks or any variant thereof including misspellings as a domain name or as part of a domain name regardless of the top-level domain, or as a meta-tag, keyword, or any other type of programming code or data./p>
6.8. The look and feel of the Fotocrats website, including all page headers, custom graphics, button icons, and scripts, is the trade dress and/or trademark or service mark and copyright of Fotocrats and may not be copied, imitated or used, in whole or in part, without the prior written consent of Fotocrats.
6.9. Contributor cannot frame or hotlink to the Fotocrats website or any Content other than its own without the prior written consent of Fotocrats.
6.10. While Fotocrats takes commercially reasonable steps to insure that the rights of its Contributors and those rights of Contributors are not violated by end users, subscribers and third parties, Fotocrats has no obligation to pursue legal action against any alleged copyright infringer of any of Contributor's rights in and to any Content.
8.1. Fotocrats agrees to pay the contributor’s according to the Contributor’s Pricing Policy of the Content by the end users. The parties acknowledge that the rate schedule may vary among various types of Content, such as still images, video footage or otherwise in accordance with its terms. Fotocrats may modify the rate schedule and licensing fees for the Content at any time and notify the same by an announcement on Fotocrats's login page of the modifications. If Fotocrats does modify the rate schedule, fees earned before the effective change in rates will be credited at the rate in effect at the time such fees was earned.
8.2. Fotocrats shall make payment of fees in respect of licensing of the Content on a monthly basis provided such fees aggregate amount exceed Rs.10,000/-, the payment shall be made on immediate basis. The payment of fees to the Contributor will be net of: (i) applicable taxes or other withholdings required by the applicable law; (ii) any amounts owned by the Contributor to Fotocrats under this Agreement or otherwise. Fotocrats shall have the right to set off against any amount owned by the Contributor on account of any threatened claim relating to any matter or any breach of warranty, indemnity and terms and conditions under this Agreement.
8.3. In the eventuality that Fotocrats is restrained from exercising any rights granted under this Agreement relating to the Content, Fotocrats shall not be required to compensate the Contributor on account of that Content.
8.4. If the Contributor's account is cancelled or closed for a breach of the material terms and conditions of this Agreement, in addition to its other rights at law or in equity, Fotocrats shall have the right to retain any royalties and/or other compensation otherwise payable to the Contributor hereunder as liquidated damages.
8.5. If Fotocrats makes an overpayment of fees or other compensation to the Contributor for any reason, Fotocrats shall have the right to deduct the amount of such overpayment from Contributor's account from his/her accrued fees or to demand the immediate repayment of such overpaid fees or other compensation.
8.6. Any breach of the rules relating to acceptable Content outlined in the Site will be deemed to be a breach of this Agreement. The Contributor grants Fotocrats the right to use the Accepted Content for its own business purposes relating to the promotion of the Site and its distribution programs, and expand the market for the licensing of Accepted Content (including, without limitation, the use of the Accepted Content and the Contributor's registered and unregistered trademarks relating to Content for marketing, sales and promotional efforts whether on the Site or through third parties). No compensation shall be due to the Contributor for use of Accepted Content for such business purposes.
9.1. Fotocrats does not and cannot review all communications or Content uploaded to the Site and is not responsible for the content, quality, or consequences of your uploading such communications or Content. Notwithstanding the foregoing, Fotocrats reserves the right to delete, move, refuse to accept or edit any communication or Content that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or is otherwise unacceptable in its discretion, and you hereby agree to forfeit any fees payable in respect of such Content to Fotocrats or as it may direct. Fotocrats shall have the right but not the obligation to correct any errors or omissions in any Content, as it may determine in its sole discretion. You acknowledge that any screening of Content performed by Fotocrats to determine Accepted Content is done as a courtesy only.
9.2. Contributor acknowledges and agrees that the submitted Content shall be used by the licensees and the end-users in accordance with the terms and conditions of the License Agreement. In the eventuality that the end user does not adhere to the terms and conditions of the License Agreement and is in breach of the same and uses any Content as not contemplated in this Agreement and the License Agreement, Fotocrats shall have no liability to the Contributor or any person claiming through the Contributor for any breach of the terms of the Agreement.
The Contributor acknowledges that during this Agreement certain Confidential Information shall be obtained by him/her through entering into the Site and use of the Site. The Confidential or proprietary information shall include but not limited to technology, products, trade secrets, processes, programs, technical know‐how, customers, distributors, costs, pricing, data, business operations and other business information. All Confidential Information owned solely by Fotocrats or any subsidiary and disclosed to any other party shall remain solely the property of Fotocrats, and its confidentiality shall be maintained and protected by the Contributor with the same degree of care used to protect its own proprietary information of a similar nature. The Contributor agrees that it would refrain from reproducing or sharing any Confidential Information rendered by Mart of Images with any third party.
11.1. The Contributor agree to indemnify, defend and hold Fotocrats, parent, its affiliates, associated companies, and their respective directors, officers, employees, shareholders, agents and licensees of Content harmless from and against any and all claims, losses, damages, costs and expenses (including reasonable attorney’s fees and disbursements) in connection with (i) arising out of any breach or claimed breach of any of your representations and warranties or any of your obligations pursuant to these terms and conditions; (ii) any use or alleged use of the Site or provision of Content under your Member name by any person, whether or not authorized by you; (iii) resulting from any communication made or Content uploaded under your member name; (iv) any claim threatened or asserted against Fotocrats, its parent or affiliates to the extent that such claim is based upon a contention that any of the content used within the scope of this Agreement and the License Agreement infringes any copyrights, trade secrets, trademarks, right of privacy or publicity, or other intellectual property rights of any third party; (v) any breach of you of this Agreement.
11.2. The Contributor hereby releases Fotocrats from any and all claims the Contributor might have, either directly, arising out of or in connection with a determination by Fotocrats to proceed or not to proceed against any infringer in any instance. The Contributor hereby agrees that any monetary recovery made as a result of any legal or enforcement action taken against any such infringer, to the extent such monies are intended to compensate Fotocrats for lost licensing fees or statutory damages, shall after deduction of all costs and expenses incurred in gaining such recovery incurred by or on behalf of Fotocrats in connection with such action, be divided between the Contributor and Fotocrats pursuant to the provisions of compensation clause. In the event Fotocrats elects not to proceed against an infringer, the Contributor shall have the right to proceed against such infringer.
11.3. Fotocrats reserves the right, at your expense, to assume the exclusive defenses and control of any matter otherwise subject to indemnification by you, and in such case, you agree to co-operate with Fotocrats’s defenses of such claim.
12.1. The Contributor has the legal capacity and authority to enter into this Agreement and to fully perform all the obligations under the Agreement.
12.2. The Contributor shall always disclose the correct and identifiable details as to the identity of the Contributor. The Contributor shall cooperate with Fotocrats in verifying the identity of the Contributor.
12.3. The Contributor is the sole and exclusive owner of the Content and has all the rights to grant the license rights to be provided under this Agreement and further warrant that the Contributor has not granted any rights or licenses to any Content or any other intellectual property or technology that would conflict with this Agreement.
12.4. The submitted Content is neither obscene nor defamatory and does not infringe the copyright or any other rights of any third party, including, without limitation, trademark rights and the rights of privacy and publicity, other proprietary rights of any third party or defames or casts into disrepute in any manner any third party.
12.5. That there is no suit, action or other legal or administrative proceeding now pending or threatened which might directly or indirectly affect the Submitted Content or which might in any way impair the rights granted by the Contributor hereunder.
12.6. You will not transmit unsolicited emails or engage in so-called spamming to publicize or promote your relationship with Fotocrats or the sale of your Submitted Content. The Contributor will not advertise or otherwise publicize his/her relationship with Fotocrats through the use of any search engine.
12.7. That all the Submitted Content shall be free from any defect, virus, work, lock or other mechanism preventing Fotocrats from its usage as contemplated under this Agreement. You shall not license your own Content except occasionally and only for legitimate creative purposes. Contributor warrants that there are and will be no claims by any other party in connection with the use or reproduction of any of the Content.
13.1. This Agreement is effective until terminated. The Contributor may terminate this Agreement at any time by giving thirty (30) days prior written notice to Fotocrats using contributor@Fotocrats.com or such other means of written notice acceptable to Fotocrats which enables confirmation of your identity and your intention to terminate. Fotocrats may also terminate this Agreement for any reason by giving you notice thirty (30) days in advance by e-mail at the last address contained in your membership information. If Fotocrats terminates your membership pursuant to the terms of the Membership Agreement, such termination shall be deemed to be notice of termination of this Agreement, as well.
13.2. Either party may terminate this Agreement upon written notice effective immediately upon receipt if the other party (i) liquidates all or substantially all of its assets, dissolves as a corporation other than through inadvertence, or otherwise ceases to do business in a material way, or (ii) makes an assignment for the benefit of creditors, or (iii) files a petition in bankruptcy, petitions or applies for a receiver or trustee for all or any substantial part of its property and such receiver or trustee is appointed, or commences, or has commenced against it, a proceeding under any bankruptcy, reorganization, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, any of which shall remain in force for a period of thirty (30) days or more, or (iv) is adjudicated insolvent or bankrupt, or (v) is in breach of this Agreement.
13.3. In addition, Fotocrats may deem an account to be terminated and may off-set any fees or credits contained in such account against its costs of administration if there has been: (i) in the reasonable opinion of Fotocrats, any material misrepresentation made as to the capacity, identity or copyright ownership of the Content or the Contributor provided hereunder; or (ii) no log-in or other activity in the account for 12 months despite reasonable commercial efforts to contact Contributor based on the information provided through the Site as part of the account profile of such Contributor.
13.4. Upon the termination of this Agreement, the grant of authority given to Fotocrats shall cease subject to the following conditions: (i) Fotocrats shall remove Accepted Content from the Site within thirty (30) days of the termination of this Agreement; (ii) notwithstanding termination, Fotocrats shall have the right to continue licensing Accepted Content until it is removed from the Site; and (iii) regardless of the expiration or termination of this Agreement, Fotocrats will continue, in accordance with this Agreement, to pay compensation due to the Contributor in respect of licenses granted to members during any transitional period, subject to any rights of set-off under this Agreement or at law.
13.5. Upon termination, Fotocrats will be entitled to retain all amounts owing to the Contributor for a period of thirty (30) days to determine any applicable rights of set-off, and shall be entitled to deduct from such amounts, a reasonable administrative fee for establishing, managing and terminating your account. The Contributor agrees to pay a termination fee equal to Rs.100 INR (Rupees One Hundred Only) per digital file or image removed from database.
13.6. Notwithstanding any other provision in this Agreement, the termination or expiration of this Agreement shall not alter or affect the rights granted to licensees or sub-licensees by Fotocrats pursuant to this Agreement.
13.8. The Contributor shall not be entitled for any damages out of termination of this Agreement. The only remedy available would be right to receive payment already accrued up on account of licensing of images upto the termination of the Agreement. Without limiting any other remedies, Fotocrats may terminate this Agreement prima facie if the Contributor is found, by conviction, settlement or other investigation, to have engaged in any fraudulent activity in connection with present venture or is in breach of any of the terms and conditions of this Agreement.
14.1. The site, including any content contained therein, are provided by Fotocrats "AS IT IS" without representation, warranty or condition of any kind, either express or implied, including, but not limited to the implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. Fotocrats does not represent or warrant that the site or the content will be made available for sale or license or that their use will be uninterrupted or error free.
14.2. Fotocrats does not represent or warrant that the site or any content available for downloading through the site will be free of viruses or similar contamination or destructive features.
The Contributor assumes all responsibility and risk for use of the Site including without limitation any of the Content or information contained herein:
15.1. In no event shall Fotocrats or any of its directors, officers, employees, shareholders, partners, agents or licensees be liable for any incidental, indirect, punitive, exemplary, or consequential damages whatsoever (including damages for loss of profits, interruption, loss of business information, or any other pecuniary loss) in connection with any claim, loss, damage, action, suit or other proceeding arising under or out of this agreement, including without limitation the use of, reliance upon, access to, or exploitation of the site, the content or any part thereof, or any rights granted to Contributor hereunder, even if Fotocrats has been advised of the possibility of such damages, whether the action is based on contract, tort (including negligence), infringement of intellectual property rights or otherwise.
15.2. Fotocrats total maximum aggregate liability under this agreement or in respect of the use or exploitation of any or all part of the site or the content in any manner whatsoever shall be limited to the fees collected by Fotocrats for the content that is the subject matter of the claim.
15.3. Fotocrats is not liable for any threatening, defamatory, obscene, offensive or illegal conduct or speech of any other party or any infringement or violation of another's rights, including intellectual property rights, rights of publicity, or rights of privacy.
15.4. Fotocrats does not make any other warranties, express or implied, regarding the Content, or its delivery systems, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. Fotocrats shall not be liable to Contributor or any other person or entity for any punitive, special, indirect, consequential, incidental or other special damages, cost or losses arising out of this Agreement, even if Fotocrats has been advised of the possibility of such damages, costs or losses. No action, regardless of form or nature, arising out of this Agreement may be brought by or on behalf of Contributor or purchaser more than one (1) year after the cause of action first arose.
The Contributor agrees that any breach of this Agreement by Contributor or its representatives would cause Fotocrats irreparable harm, injury, loss and damage, the extent of which would be impossible to ascertain and for which monetary damages would not be an adequate remedy. Accordingly, in addition to any other remedies Fotocrats may have at law or in equity, Fotocrats shall be entitled to injunctive and other equitable relief in the event of any such breach of this Agreement by Contributor or its Representatives.
17.1. Any dispute, violation, controversy, contest or claim arising out of or relating to this Agreement or the breach, termination or validity thereof (hereinafter the "Disputes") shall be resolved amicably in the first instance. The Parties agree to meet to resolve such dispute in good faith. Should such a solution not be reached, within  days from the date of commencement of the dispute, difference or disagreement or such longer period of time as may be mutually agreed by the Parties in writing, such dispute, difference or disagreement shall be referred to Arbitration and shall be finally resolved through arbitration conducted by a tribunal of three arbitrators, with the right of each party to appoint an arbitrator, who in turn will appoint a Presiding Arbitrator. The Presiding Arbitrator shall pass a speaking award. Any order/directions/awards of the majority of the tribunal shall be final and binding on both the parties. The arbitration proceedings shall be in accordance with the Indian Arbitration and Conciliation Act 1996 and Rules there under as at present in force. The seat of arbitration shall be Delhi, India. The arbitration shall be administered in accordance with its practice, rules and regulations. If the award passed in the Arbitration proceeding is not acceptable to any of the Party, then the Party is free to approach the appropriate court of law as agreed herein below. This Agreement shall be construed in accordance with and governed by the laws of India without giving effect to their conflict of laws principles or rules. The courts at Delhi, India shall have exclusive Jurisdiction.
17.2. If Fotocrats is obligated to go to Court or arbitration to enforce any of its rights, or collect any fees, the Contributor agrees to reimburse Fotocrats of all the legal expenses including the reasonable attorneys' fees.
17.3. The Contributor agrees to service of any required notice or process upon him/her by email, registered mail or courier
17.4. The Contributor agrees to the exclusive jurisdiction of Delhi, India courts and hereby waive any jurisdictional or venue defenses otherwise available.
18.1. Severability. If any or more of the provisions contained in the Agreement is found to be invalid, illegal or enforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them enforceable.
18.2. No action of Fotocrats, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of Fotocrats of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by a party to such rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy on any occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.
18.4. Assignment. Contributor cannot assign its rights and obligations under this Agreement without Fotocrats's written consent. This Agreement shall be binding upon the parties and upon their respective legal representatives, successors and permitted assigns. Fotocrats may assign its rights and obligations under this Agreement without Contributor's consent to any Fotocrats affiliate, or partner or any affiliate or surviving party as part of a corporate reorganization, consolidation, merger, or sale.
18.5. This Agreement can be amended by the written agreement of the parties or by Fotocrats posting amendments on the Upload portion of the Site. Continued use and failure to terminate this Agreement within fifteen (15) days of posting such amendment will be deemed to be acceptance of the amendment by the Contributor and it will be incorporated by reference into this Agreement.
18.6. Force Majeure. It is expressly agreed that neither party shall be liable for any default, delay, and lapse occurring due to reasons of Force Majeure including war, risk, theft, strike, tempest, sabotage, and change of law or any act of God.
18.7. Nothing in this Agreement shall create a partnership, employer-employee relationship, franshisee-franshisor, or a joint venture between the parties. Contributor shall be solely responsible for the control and management of its business operations, for obtaining and maintaining all applicable business licenses and insurance. Contributor shall indemnify and hold Fotocrats and its successors, officers, directors, employees, and agents harmless from any and all claims, demands, losses, or damages (including reasonable attorney's fees and expenses) arising out of or in connection with liabilities or obligations imposed or attempted to be imposed upon Fotocrats by virtue of any such law with respect to Contributor's employees and agents.