Licence Agreement

This is a legal agreement (the “Agreement”) between you or your company, firm or other organisation and its parents, subsidiaries, successors, assigns, and all employees and agents ("you") and Thomas Smith Limited ("Thomas Smith Limited" "Thomas Smith", collectively with you, the “parties” to the Agreement). Thomas Smith Limited has been appointed agent by its Contributors to grant this Licence on their behalf. 

Please read this agreement carefully in its entirety before you download or use any Image(s). By confirming the purchase of the Image(s) or downloading the Image(s) you have selected from this website you agree to be bound by the terms of this Agreement and the Image(s) usage restrictions contained herein. If you do not wish to accept the terms of this Agreement, please do not proceed with any purchase of Image(s). By accepting the terms of this Agreement, you are also agreeing to be bound by our Terms and Conditions.

1. Definitions 

“Terms” Means the terms and conditions set out in this Agreement and includes, where appropriate, the terms contained in the Invoice. The terms contained in the Invoice replace those in this Agreement to the extent of any inconsistency. 

“Contributor” Means the parties who have submitted the Image(s) to Thomas Smith Limited. 

“Thomas Smith” and “Thomas Smith Creative” Means Thomas Smith Limited. 

“Invoice” Means the computer-generated or pre-printed invoice or license document provided by Thomas Smith Limited that may include, without limitation, details of the Image(s) selected, any limitations on the Licence in addition to those specified herein, the key terms of the Licence and the corresponding price for the Licence. The terms contained in the invoice or license document shall be incorporated into this Agreement and all references to the Agreement shall include those terms. The invoice or license document will specify if any Image(s) bought are Royalty Free Images if applicable. 

“Image(s)” Means the specific copy of the Image(s) or Footage available on the Thomas Smith Limited website that you have selected and which is identified on the Invoice. 

“Intellectual Property” Means all property, intellectual, industrial design and moral rights of every kind and nature, including all applications thereof, including but not limited to copyrights, trademarks, service marks, trade names, trade dress, symbols, logos and designs, and trade secret rights and registrations, initial applications, renewal extensions, continuations, divisions or reissues thereof. 

“Licence” Means the non-exclusive (unless otherwise stated in the Invoice) non-sub-licensable right Thomas Smith Limited grants to you to use the Image(s). 

“Reproduction” Includes any form of copying or publication of the whole or part of any Image(s) whether by printing, slide projection or other display (whether or not to an audience), electronic, digital or mechanical means, use as a reference by an artist or in an artist’s illustration or by any other means. Reproduction further includes the copying or distortion or manipulation of the whole or part of any Image(s) (for example, by computer, electronically, digitally by an artist or by any other means), even though the resulting Image or Footage may not appear to a reasonable person to be derived from the original Image(s). 

“Release” Means a model or property release or any other release of a third party right or other permission which it is necessary or desirable to obtain in respect of any Image(s). 

“Licence Fee” Means any sum or sums payable to Thomas Smith Limited by you in respect of the Licence. 

2. Contracting parties

The parties to this contract are Thomas Smith Limited and you. Thomas Smith Limited has been appointed agent by its Contributors to grant this Licence on their behalf. 

3. Grant of rights and restrictions 

3.1. For all Licences

3.1.1. Altering, cropping and manipulating Image(s) Images, when used in a news 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, but shall not, under any circumstances, otherwise be altered. Images of in copyright artwork may be cropped or otherwise edited for technical quality, provided that the original context and setting of the Image is not altered. For all other Image(s) you may alter, crop, manipulate and create derivative works from the Image(s), so long as you ensure any Thomas Smith Limited source credit is not removed from any place where it is embedded in the Image(s). 

3.1.2. You must not incorporate Image(s) (or any part of them) into a logo, trademark or service mark. 

3.1.3. Image(s) must not be used as references for creating drawings or other visual works unless specifically authorised in the Invoice. 

3.1.4. Thomas Smith Limited does not warrant the accuracy of the captioning, keywording or any other information associated with the Image(s).

3.1.5. You acknowledge that the Image(s) licensed to you may be original Image(s) that have had certain pre- formatting changes carried out by Thomas Smith Limited, as may be specified on the applicable Invoice. You are solely responsible for ensuring that the Image(s) so altered are suitable and appropriate for your intended use. You agree that any altered Image(s) that give an untrue representation of reality should not be used for news or current events reporting. You accept that pre-formatting changes carried out to original Image(s) by the Contributor may not be specified on the Invoice. 

3.1.6. You may not use the Image(s) in a pornographic, defamatory, fraudulent, lewd, obscene or otherwise illegal manner, including but not limited to infringing any third party Intellectual Property or privacy rights, whether directly or in context or by juxtaposition with other materials. 

3.1.7. If any Image(s) featuring a model is used in (i) a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service, or (ii) if the depiction of the model in the Image(s) would be unflattering or unduly controversial to a reasonable person, you must accompany each such use with a statement indicating that the person is a model and the Image(s) is being used for illustrative purposes only. 

3.1.8. You must abide by any direction or instruction on use notified to you by Thomas Smith Limited before, after or at the time of delivery of the Image(s), either in the information accompanying the Image(s), the Invoice or otherwise. 

3.1.9. Thomas Smith Limited, after reasonable notice, may inspect any records, accounts and books relating to the Reproduction of any of the Image(s) to ensure that the Image(s) are being used in accordance with this Agreement. 

3.1.10. You may store the Image(s) in a digital library, network configuration or similar arrangement to allow them to be viewed within your organisation and by your clients but you must retain any Thomas Smith Limited source credit, any copyright notices, the Image(s) identification numbers and any other information as may be invisibly embedded or visibility provided within the electronic files containing the original Image(s). When your Licence period as set out in the Invoice ends, you must promptly delete the Image(s) from your computer or other electronic storage system. Any subsequent reuses of the Image(s) must be agreed with Thomas Smith Limited in advance of relicensing to ensure the Image(s) is available to use under the rights you require. 

3.1.11. The Image(s) may not be sub-licensed, resold or otherwise made available for use or distribution separately or detached from a product or web page. For example, the Image(s) may be used as an integral part of a web page design, but may not be made available for downloading separately or in a format designed or intended for permanent storage or reuse by website users. Similarly, your customers may be provided with copies of the Image(s) as an integral part of work product, but may not be provided with the Image(s) or permitted to use the Image(s) separately. 

3.1.12. Not all of Thomas Smith Limited’s Image(s) have Releases. It is your responsibility to check that all necessary Releases have been secured (see clause 7.3 below). 

3.1.13. Thomas Smith Limited grants to you a non-exclusive (unless otherwise stated on Invoice), non-sub-licensable and non-assignable right to Reproduce the Image(s) solely in the manner and for the purposes set out in the Invoice. When exercising this right you must ensure any Thomas Smith Limited source credit or other third party credit or notice, including Intellectual Property rights, is not removed from any place where it is placed on or embedded in the Image(s). 

3.1.4. Use of the Image(s) is strictly limited to the use, medium, period of time, territory and any other restrictions specified in the Invoice. You may utilise the Image(s) in any production process that may be necessary for the intended use specified in the Invoice. 

3.2 Usage Type Definitions

3.2.1 Personal Use - Use for personal display purposes only. Excludes commercial and editorial use. No reproduction allowed.

3.2.2 Print Ad or Display - Use in any print advertising, display or billboard intended for commercial or promotional purposes. Also includes use in any trade show panel, in-store or decor. 

3.2.3 Printed Marketing Materials or Product/Packaging - Use in any brochure or other printed material - including direct mail, public relations or sale material* - distributed to a target audience for commercial or promotional purposes. Also includes use in any retail product or product packaging. *Includes electronic version of finished piece (e.g. PDF).

3.2.4 Web or Electronic or Broadcast (Commercial) - Use in any web, electronic or or broadcast media - including internet, email, mobile devices, television or presentation software - intended for commercial or promotional purposes. Also includes use in film, video or theatrical production.

3.2.5 All Commercial Use - Use in any medium intended for advertising and other commercial or promotional purposes.

3.2.6 Editorial Front Cover - Use on the front cover of a magazine, newspaper, book or other printed material not intended for commercial or promotional purposes. Use applies to a single issue or edition and all reprints or printed versions of the original use. Image may only be used on the front cover of the publication.

3.2.7 Editorial Inside Placement or Back Cover - Use inside or back cover of a magazine, newspaper, book or other printed material not intended for commercial or promotional purposes. Use applies to a single issue or edition and all reprints or printed versions of the original use. Image may be used anywhere other than the front cover of the publication.

3.2.8 Web or Electronic or Broadcast (Editorial) - Use in any web, electronic or or broadcast media - including internet, email, mobile devices, television or presentation software - not intended for commercial or promotional purposes. Use applies to a single edition, issue or program and all copies or versions of the original use appearing in electronic or broadcast format.

3.2.9 Internal Company - Use in any medium intended for internal company use.

4. Credit and Copyright issues 

4.1. No ownership or copyright, if applicable, in any Image(s) shall pass to you by the issue of the Licence. You acknowledge that all right, title and interest in and to the Image(s), including, without limitation, any applicable Intellectual Property rights therein remain with the Thomas Smith Limited and its Contributors, and nothing contained herein shall be construed to convey any rights or proprietary interest in the Image(s) other than the specific rights granted in Section 3 herein. 

4.2. Unless otherwise agreed in writing, if any Image(s) is reproduced by you for editorial purposes (i.e. for any non-promotional purpose) you must include the credit line "(Photographer’s name)/Thomas Smith Ltd” if applicable, or “Thomas Smith Ltd” or any other credit line specified by Thomas Smith Limited. If a credit line is omitted then an additional fee equal to one hundred percent (100%) of the original amount Invoiced attributable to the Image(s) in question shall be payable by you. 

4.3. Thomas Smith Limited’s source credit and Image(s) identification reference which appear in the Image(s) file must remain with your digital copy of the Image(s) at all times. You will retain any Thomas Smith Limited source credit, the name of any artist if applicable, the respective Image(s) reference and any other information or metadata (“content information”) that is embedded in or provided with the electronic file that comprises any Image(s) which you have downloaded from the Website or otherwise received from Thomas Smith Limited. Failure to maintain the integrity of the content information referred to in this Clause 4.3 will constitute a breach of this Agreement. 

4.4. In connection with the use of "Thomas Smith Limited" or any other of Thomas Smith Limited’s trade names, trademarks, logos or service marks, including the names of all Image collections ("Marks"), you acknowledge and agree that (i) such Marks are and shall remain the sole property of Thomas Smith Limited; (ii) nothing shall confer upon you any right of use in or to the Marks; and (iii) you shall not now or in the future contest the validity of the Marks. 

4.5. You will immediately notify Thomas Smith Limited if you become aware or suspect that any third party has gained access to the Image(s) through you, is wrongfully using the Image(s), in whole or in part, or is violating any of Thomas Smith Limited’s or any third party Intellectual Property rights, including, but not limited to, trademarks and copyrights, as applicable. 

5. Warranty and limitation of liability 

5.1. Thomas Smith Limited guarantees that should any Image(s) have defects in material or workmanship and these are notified in writing to Thomas Smith Limited within thirty (30) days from the date of delivery of the Image(s) then Thomas Smith Limited will either replace the Image(s) with another digital copy of the Image(s) free from defect or refund the Licence Fee paid by you to the extent attributable to the defective Image(s), at Thomas Smith Limited’s option. 

5.2. Thomas Smith Limited makes no other warranty, express or implied, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. Neither Thomas Smith Limited nor its Contributors shall be liable to you or any other person or entity by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law, or under the express terms of this Agreement for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other Claims (whether caused by the negligence of Thomas Smith Limited, its servants or agents or otherwise) which arises out of or in connection with this Agreement, even if Thomas Smith Limited has been advised of the possibility of such damages, costs or losses. Thomas Smith Limited’s maximum liability arising out of or in connection with your use of or inability to use the Image(s) (whether in contract, tort or otherwise) shall, to the extent permitted by law, be limited to the value paid by you for the relevant Image(s). 

5.3. The terms of clause 5.2 shall not preclude any liability or claim for death or bodily injury or any claim arising from wilful default or gross negligence on the part of Thomas Smith Limited or any of its employees, agents or otherwise. Each provision of clause 5.2 is to be construed as a separate limitation (applying and surviving even if for any reason one or other of such provisions is held to be inapplicable, unreasonable or unenforceable in any circumstances) and shall remain in force notwithstanding the termination of this Agreement. 

6. Payment 

Any Reproduction by you or on your behalf without reporting of use as soon as practicable, and in any event within 4 months, and payment being received by Thomas Smith Limited constitutes a breach of this Agreement which entitles Thomas Smith Limited immediately to terminate this Agreement and further may, in some instances constitute an infringement of copyright and/or other Intellectual Property rights. 

7. Release information

7.1. Thomas Smith Limited gives no representations or warranties whatsoever as to the existence of any Releases associated with the Image(s). 

7.2. Thomas Smith Limited gives no representations or warranties whatsoever with respect to the use of names, trademarks, logos, uniforms, registered or copyrighted designs or artistic works depicted in any Image(s). 

7.3. You must satisfy yourself that all Releases as may be required for reproduction of the Image(s) have been secured and are appropriate for your intended use. You are solely responsible for obtaining all such Releases and the Licence is conditional in each case on your obtaining them. If you are unsure as to whether any Releases are needed for your Image(s) usage, then it is your responsibility to consult with relevant parties. You shall not rely upon any representation or warranty given by Thomas Smith Limited employees or representatives save as set out in this Agreement. 

8. Indemnity 

You agree to indemnify and hold Thomas Smith Limited and its Contributors harmless against any claims, damages, losses, expenses or costs, including legal costs, arising in any manner whatsoever from your unauthorised use of any Image(s) or of the depiction of any person or thing contained in any Image(s) supplied to you by Thomas Smith Limited, or any other breach by you of any of your obligations under this Agreement. 

9. Licence fee 

The Licence Fee depends on the nature of the rights granted. You agree to notify Thomas Smith Limited in the event that you desire to expand the usage for the Image(s) and pay any additional Licence Fee. Use of an Image(s) in a manner not specifically authorised under the terms set out in the Invoice or otherwise in the Agreement constitutes a breach of the Agreement and may in some instances constitute an infringement of copyright and/or other Intellectual Property rights. 

10. Licence cancellation 

Thomas Smith Limited may withdraw any Image(s) based on a potential or actual legal claim; or any other circumstance deemed appropriate to do so. Upon termination or withdrawal, you and your client, if applicable, must immediately discontinue all future use of the Image(s), delete the Image(s) and all copies from all magnetic/electronic media and destroy all other copies in its possession or control. Thomas Smith Limited may replace the Image(s) with alternate Image(s) upon its discretion. 

11. Confidentiality 

Except as required by law both parties shall procure that all confidential information disclosed by one party to the other in accordance with this Agreement or which may at any time until termination of this Agreement come into the other party's knowledge, possession or control shall not be used for any purposes other than those required or permitted by this Agreement and shall remain confidential and shall not be disclosed to any third party except insofar as this may be required for the proper operation of this Agreement and then only under appropriate confidentiality provisions approved by the other party. For the purposes of this agreement confidential information shall include without limitation that relating to the business of a party, its business systems, pricing, trade secrets, business processes and client and supplier lists. These obligations of confidentiality shall cease to apply to any particular item of confidential information once it becomes public knowledge other than by any act or default of either party. 

12. Data Privacy 

We will collect and process personal information either submitted by you or collected by us to enable us to perform our contractual obligations to you and to provide services related to this Agreement. We will at all times adhere to applicable data protection laws and will process your personal information in accordance with our Privacy Policy. 

13. Interest on overdue Invoices and reasonable recovery costs.

13.1. Unless otherwise agreed by us in writing, all Invoices are payable by you within 30 days. 

13.2. If you do not make full payment of an Invoice on time we reserve the right to charge interest on the outstanding amount at the rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998 from the date payment was due until payment is made. 

14. Condition of Image(s) 

You should make sure that you examine the Image(s) for possible defects (whether digital or otherwise) before sending the Image(s) for Reproduction. Subject to clause 5.1, Thomas Smith Limited 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(s) or its caption or in any way from its Reproduction. 

15. Downtime 

Due to the nature of server provision, downtime and lost transmissions may occur as part of routine maintenance. You are advised to maintain a copy of your account status and details of Image(s) purchased. 

16. Miscellaneous terms 

16.1. 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 within 28 days of our giving you notice to comply. In the event of termination, all rights granted will immediately revert to us and any further exploitation of any Image(s) may in some instances constitute an infringement of copyright and/or other Intellectual Property rights. 

16.2. The Licence is conditional on you not being aware of or having received, prior to licensing any Image(s), any correspondence, representations, complaints or Claims from Thomas Smith Limited or third parties (collectively ‘Claims’) alleging that the Image(s) 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(s) is purported to be Licenced will render any Licence granted void from the beginning. Any use of in-copyright Image(s) in a manner not expressly authorised by this Agreement may constitute copyright infringement, entitling Thomas Smith Limited 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 Thomas Smith Limited's other remedies under this Agreement, Thomas Smith Limited reserves the right to charge and you agree to pay a fee equal to up to five (5) times Thomas Smith Limited's standard Licence fee for the unauthorised use of the Image(s). 

16.3. No variation of any of these Terms shall be effective unless in writing and signed by Thomas Smith Limited and you. No action of Thomas Smith Limited, other than an express written waiver, may be construed as a waiver of any clause of this Agreement. In the event that Thomas Smith Limited waives any specific part of this Agreement, such fact does not mean that any other part is waived. In the event of any inconsistency between the Terms and the terms contained in any purchase order or other communication sent by you, the Terms of this Agreement shall prevail. 

16.4. Should any clause of this Agreement be found unenforceable, that will not affect any other clause and each will remain in full force and effect. 

16.5. 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 Thomas Smith Limited 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 Thomas Smith Limited in respect of all reasonable legal fees and costs incurred by Thomas Smith Limited in relation thereto. 

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