The contributor agreement 27.02.02 - 02.05.02
| Units | Amount | Timing | |
|---|---|---|---|
| Order processing fees | |||
| Credit card processing fee of gross license fee | % | 5.00 | -- |
| OR | |||
| Invoicing and collection of gross licence fee from customers with accounts | % | 5.00 | -- |
| Collector Commission | |||
| Commission on Net Licence Fees for an Image sold through a Collection section | % | 0.00 | -- |
| Alamy.com fees and commissions | |||
| Alamy.com commission of Net Licence Fee for Contributors with a registered payment address in Austria, Belgium, Canada, Denmark, Finland, France, Germany, Gibraltar, Greece, Ireland, Italy, Liechtenstein, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, United Kingdom, United States of America | % | 10.00 | -- |
| Alamy.com commission of Net Licence Fee for Contributors with a registered payment address in all other countries (not listed above) | % | 20.00 | -- |
| Image Submission fee (per Image submitted) | US$ | 2.00 | -- |
| Storage fee per Image per month, or part thereof, levied in advance of the first day of the month. This charge will come into effect on 1st March 2003 | US$ | 0.10 (cents) | -- |
| Payment frequency | |||
| If Account Balance (net of commissions) is > US$ 250 of Cleared Funds | -- | -- | Monthly |
| Payment fees | |||
| Cheque fee - Citibank Processing and Postage | US$ | 8.00 | -- |
| Citibank Foreign exchange fee (if payment not in US$) of net balance | % | 1.00 | -- |
| Cheque cancellation fee | US$ | 15.00 | -- |
| OR | |||
| Wire Transfer fee - Citibank Processing and Administration | US$ | 11.00 | -- |
| Citibank Foreign exchange fee (if payment not in US$) of net balance | US% | 1.00 | -- |
Preliminary
The following provisions record the legal terms and conditions upon which alamy.com Holdings (Jersey) Limited, hereafter referred to as "alamy.com" provides automated on-line broker services for the Licensing of Images by Copyright Owners and Agents to third parties.
By clicking the "I agree" button, the Copyright Owner or Agent accepts that a legally binding contract has been entered into with alamy.com.
Under this contract alamy.com is authorised:
- to add the Images contributed by the Copyright Owner or Agent to one or more of its Gallery databases as specified in the Listing Confirmation;
- on behalf of the Copyright Owner to License (or permit any alamy.com Group company to license) the Images to third parties on the basis of alamy.com's standard Royalty-Free License or Traditional License (with or without Rights Protection);
- to deduct its commission and fee for Listing Services as set out in the alamy.com Fees and Commissions Schedule; and
- to remit the balance of License Fees in accordance with an effective method of transfer nominated by alamy.com to either the Copyright Owner or Agent specified in the Listing Confirmation. This may be by cheque, direct bank transfer or some other means.
Where the contract is entered into by an Agent s/he represents that s/he has the authority of the Copyright Owner.
A contract shall be entered into between alamy.com and any Copyright Owner or Agent when the "I Accept" button is clicked following the display of a completed Listing Confirmation. The contract shall comprise that Listing Confirmation Form and the terms and conditions set out or referred to below.
The contract may be varied or substituted at any time by the completion of a new Listing Confirmation. The contract may be terminated by alamy.com or the Copyright Owner or Agent in accordance with clause 14 below.
alamy.com is a member of the British Association of Picture Libraries and Agencies (BAPLA) and subscribes to its Code of Conduct.
Definitions
The following definitions shall apply:
- "Adult Release"
- means any written release which, having regard to applicable law in any jurisdiction in the world, is necessary or desirable to secure from or on behalf of any living person or the estate of a deceased person or an infant whose Image is incorporated in whole or in part in any Image
- "Agent"
- means the person who acts on behalf of the Copyright Owner whose name and address is provided on-line to alamy.com and recorded in the Listing Confirmation applicable to any Image
- "alamy.com"
- means alamy.com Holdings (Jersey) Limited or any other person to whom it may assign it rights under this contract
- "alamy.com Fees and Commissions Schedule"
- means the table set out above which lists the fees and commissions payable or any substitute table of which alamy.com has given notice in accordance with clause 5d)
- "alamy.com Group"
- means alamy.com and any person which is alamy.com's holding company or any subsidiary of such a holding company
- "Cleared Funds"
- means funds available to pay the Contributor from licence sales made, where the time to clear the funds shall be the longer of either 45 days from the date of the licence sale or the date on which receipt of the funds for the sale is cleared in alamy.com’s bank account.
- "Collector"
- means the person who maintains a Gallery and whose name and address is provided on-line to alamy.com and recorded in a Listing Confirmation
- "Collections Section"
- means the alamy.com Gallery that has been maintained by a Collector intended for licensing to Customers by Royalty-Free License or Traditional License
- "Contributor"
- means in respect of any Image the Copyright Owner or if the Listing Confirmation has been completed on his behalf by an Agent, that Agent
- "Copyright Owner"
- means the person who is represented as owning the copyright in any Image and whose name and address is provided on-line to alamy.com and recorded in the Listing Confirmation Form applicable to that Image
- "Customer"
- means any third party individual, partnership or corporation who may be intermediaries or end-users and to whom a Royalty-Free License or Traditional License (with or without Rights Protection) is or is proposed to be granted utilising the System
- "Gallery"
- means any digital library or catalogue of Images maintained or accessed via alamy.com which shall be divided into a Royalty-Free Section, Traditional Licensing Section and a Collections Section
- "Image"
- means any digitised photograph which is the subject of a Listing Confirmation, accepted by alamy.com and entered into the Gallery
- "License"
- means either a Royalty-Free License or a Traditional License (with or without Rights Protection)
- "License Fees"
- means any sum or sums actually received by alamy.com from any Customer in respect of the License of an Image whether a single payment or a royalty paid over time
- "Gross Licence Fee"
- means the gross amount billed to the customer inclusive of any sales or transactions taxes, including but not limited to VAT
- "Net Licence Fee"
- means the net amount billed to the customer exclusive of any sales or transactions taxes, including but not limited to VAT
- "Listing Confirmation"
- means the on-line display on the System at the time the Contributor clicks the "I agree" button and which will have detailed:
- the name and address of the Contributor and the bank account details (if applicable) for payment to the Contributor
- where the Contributor is an Agent the name and/or identification reference code for the Copyright Owner of each Image being provided by the Contributor
- the alamy.com Gallery in which the Image is to be displayed which may be a
- Royalty-Free Gallery; or
- a Traditional License Gallery;
- a Collector’s Gallery
- the currency in which the Contributor desires that Net License Fees which are Cleared Funds are to be remitted to him/her
- the Listing Services selected by the Contributor for each Image
- any Prior Rights or any restrictions as to territory, media or otherwise which are to apply to the broker appointment of alamy.com for any Image
- if applicable, the Contributor’s permission for Images to be made available on a discounted basis or subscription basis to educational and/or charitable organisations
- when available on the System and, if applicable, the Contributor’s request that net License Fees attributable to selected Images be paid to a charity of the Contributor’s choice
- "Listing Services"
- means the services which may be provided by alamy.com in respect of the display and indexing of an Image including but not limited to translation, captioning, manner and location of display
- "Prior Rights"
- means in respect of any Image any License or other right granted by or on behalf of the Copyright Owner for the use of that Image in any territory, media or otherwise
- "Property Release"
- means any written release which, having regard to applicable law in any jurisdiction in the world, is necessary or desirable to secure from the owner of any property which Image is incorporated in whole or in part in any Image
- "Releases"
- means an Adult Release, Property Release or any other release of a third party right which it is necessary or desirable to obtain in respect of any Image
- "Rights Protection"
- means any Traditional License granted to a Customer and which includes an exclusive element which may be time, territory, industry or otherwise
- "Royalty-Free Licence"
- means any Royalty-Free License in alamy.com's standard form from time to time granted by alamy.com on behalf of a Copyright Owner during the period of this contract in respect of any Image included in the Royalty-Free Section
- "Royalty-Free Section"
- means the alamy.com digital library or catalogue of Images intended for licensing to Customers for a single up-front payment under the terms of the alamy.com Royalty-Free License
- "Sub Agent"
- means an agent of the Contributor who represents the Contributor
- "Substantially Similar"
- means that when one Image is compared to another Image, all or most of its principal elements of subject matter are depicted in a way that may reasonably cause a person viewing each Image side by side to believe one Image is the same or substantially the same as the other Image
- "System"
- means the on-line broker system operated by alamy.com for the automatic brokering by License of Images by Contributors to Customers
- "Traditional Licence"
- means any tailored License in alamy.com's standard granted by alamy.com on behalf of a Copyright Owner during the period of this contract in respect of any Image included in the Traditional Licensing Section
- "Traditional Licensing"
- means the alamy.com digital library or catalogue of "Images Section" intended for licensing to Customers with tailored terms selected on-line by Customers and which comprises non exclusive rights defined by:
- territory
- period
- industry
- media
- print run and other conditions and which also permits Customers to purchase a Rights Protection License with an exclusive element
- "Termination Fee"
- means the fee payable for withdrawing an Image from the System as described in these terms and conditions
Contracting Parties
- The broker contract represented by a Listing Confirmation and these terms and conditions are between alamy.com and the Contributor. Licenses are entered into by alamy.com as agent for the Copyright Owner of an Image.
- alamy.com may change these terms and conditions by giving 45 days prior notice at any time.
- No person who is not a party to the contract may enforce any term or condition of it.
Appointment of alamy.com
The Contributor appoints alamy.com as its Agent to grant Royalty-Free Licenses or Traditional Licenses (with or without Rights Protection) in any Image using the System
Broker Commission, Fees, Payment and Acceptance
- alamy.com shall charge in US Dollars to the Contributor:
- a commission or commissions at its published rates on all License Fees which may include the commission due to any Agent who allows an Image to be listed in a section of the Gallery maintained by him/her; and
- fees at its published rates for the Listing Services.
- The Contributor shall report all sales made by the Contributor or the Contributor’s Sub Agents where either the sale has originated from a search on the website maintained by any company in the alamy.com Group, or where alamy.com has provided a high resolution image for the fulfilment of the sale by a Contributor. The Contributor shall report each month in a format defined by alamy.com, but which will include the following:
- the alamy.com Group image reference number
- the date of each sale in the month, the sale amount excluding any VAT or sales tax for each Image and the customer to whom sold
- the amount due to alamy.com for the month, which shall be calculated as the relevant percentage as set out in the alamy.com Fees and Commissions Schedule multiplied by the total amount collected in the relevant month of all previous sales, or, if the Contributor so wishes, the relevant percentage multiplied by the amount of net sales in the month.
- the Traditional Licence restrictions relating to each Image, if applicable.
- Payment in respect of sales the subject of a reporting obligation under Clause 5b) above shall be made 15 days after the month end. Payment shall either be made in United States Dollars (“US$”) or British Pounds (“GBP”) at the discretion of alamy.com. Where the base currencies for the sales are different from US$ or GBP then the exchange rate to be used for conversion to GBP or US$ will be mutually agreed by alamy.com and the Contributor.
- alamy.com may on 45 days' prior notice at any time change the amount of its charges referred to in clause 5a) or the amount of the Termination Fee.
- Within 14 days of the end of each month alamy.com shall provide the Contributor with a statement on-line for that previous month. The statement shall for that period:
- specify the License or Licenses granted;
- for each Traditional License include details of the terms of the License including details of all Rights Protection which shall have been granted;
- record the License Fees received and any due but not yet paid;
- specify the balance due to the Contributor being Net Licence Fees received after the deduction of the debit balances on the Contributor's account and any payment to charity;
- specify the date and bank account details for the payment due to the Contributor.
- The net balance for each Month shown in the statement shall be paid to the Contributor in the currency specified in the Listing Confirmation within 30 days of the end of that Month.
- Amounts due to the Contributor shall be converted from the currency in which it has been received by alamy.com to the currency for payment at the rate prevailing on the business day immediately preceding the date of payment.
- alamy.com may recover by debiting a Contributor's account or otherwise any sum incorrectly or inadvertently paid to alamy.com by a Customer which has been credited to the Contributor's account.
- Acceptance of an Image by alamy.com shall be at alamy.com's sole discretion and alamy.com shall be entitled to reject any Image if alamy.com considers that the Image has ceased to be sufficiently marketable.
- alamy.com shall charge in US Dollars to the Contributor:
Breaches of Licenses by Customers
- The Contributor recognises that alamy.com is providing a low cost broker service and that it shall have no obligation to conduct any verification or check of the character, standing or financial position of any Customer.
- In the event of any alleged breach of any License by a Customer or any other infringement of intellectual property or other rights, alamy.com's sole obligations shall be to:
- supply the Contributor with the information on its database relating to that Customer; and
- provide testimony in any action which may be brought by the Contributor by verifying the terms of the contract entered. Prior to giving this assistance alamy.com may require the Contributor to have indemnified alamy.com for all of the costs and expenses of any such action including at alamy.com's discretion providing and securing the costs of alamy.com's legal and other advisers.
Representations, Warranties and Undertakings by Contributor
The Contributor represents, warrants and undertakes to alamy.com as follows:
- except for the Prior Rights (if any) the Copyright Owner is the owner free from any third party rights of the copyright and all other intellectual property rights in the Image;
- where the contract is entered into by an Agent on behalf of the Copyright Owner the Agent has the full authority of the Copyright Owner to enter into this contract on his behalf and to confer on alamy.com the broker appointment provided by this contract;
- no other party's permission is required for the Contributor to enter into this contract or for alamy.com to perform the broker services envisaged by this contract;
- except for the Prior Rights (if any) and subject to the terms set out in the Listing Confirmation Form there is not and will not during the term of this contract be any fetter on alamy.com Licensing each Image to a Customer to the fullest extent possible utilising its Royalty-Free License or Traditional License (with or without Rights Protection);
- the Contributor has reviewed each Image supplied by him/her and has secured any Releases relevant to each Image;
- captioned information provided with any Image is accurate and does not infringe the rights of any third party;
- none of the Images or the captioned information is defamatory or pornographic;
- the Contributor will not supply to any third party any Image which is Substantially Similar to any of the Contributor's Images which if it were the Image itself would conflict with any Prior Rights, with the exception that Images may be supplied by the Contributor to any third party for the Contributor's personal promotional purposes; and
- the Contributor will ensure that its correct email address is supplied to alamy.com in accordance with paragraph 17.
Obligations of alamy
alamy.com undertakes to the Contributor:
- to comply with its obligations under clauses 5 and 6;
- not to knowingly License any Image in contravention of the terms set out in the Listing Confirmation;
- to use its reasonable commercial endeavours utilising the System, to obtain reasonable Licensing fees for Traditional Licenses.
Audit Rights of Contributor on alamy.com
- alamy.com shall initiate an audit of its Systems and its allocation of payments due to Contributors on a yearly basis by an independent firm of Chartered Accountants of alamy.com’s choice.
- Upon receiving 30 days' written notice, a Contributor may review the audit methodology and a copy of the System audit with the deletion of any records of other Contributors and the deletion of any other confidential commercial items.
- in the unlikely event of a material dispute between the Contributor and alamy.com regarding amounts due to the Contributor, alamy.com shall, at a convenient time and upon receiving 30 days' written notice, allow a representative (who shall be either a qualified lawyer or accountant) of the Contributor to inspect alamy.com's records which relate only to the Contributor's account. The costs of the inspection shall be paid by the Contributor if it reveals there has been an underpayment of US$500 or less in any 12 month period, otherwise alamy.com will correct the records, make any payments due and reimburse the actual costs of the Contributor’s audit.
Audit Rights of alamy.com on Contributor
- alamy.com shall have the right, not more than once every calendar year, to audit the records of the Contributor to check that sales made by the Contributor which have either originated from a search of the alamy.com Group website, or where alamy.com has provided a high resolution image for the fulfilment of the sale by a Contributor, are being reported and paid in line with the reporting requirements detailed in Clause 5b). An independent Accountant or Lawyer or a member of the alamy.com Group internal audit team may carry out the audit.
- The alamy.com group shall give 30 days’ notice before any such audit shall take place
- The audit of the Contributor shall be paid for by the alamy.com group except were the Contributor is found to have not paid amounts due to the alamy.com group in excess of US$ 500 in any 12 month period, above which level the Contributor will have to pay the costs of the audit.
- If the Contributor is found to have withheld payments from alamy.com then alamy.com shall have the right to the following:
- interest on all delayed payments calculated at the Bank of England base rate plus 4% from the date from which payment was due to alamy.com.
- to be reimbursed the audit costs where the audit reveals an underpayment of 10% or more.
- alamy.com reserve the right that if the Contributor has withheld funds in excess of US$ 500 in any one calendar year to terminate the contract with the Contributor.
- alamy.com also reserves the right to carry out spot checks on Contributors to assess whether they are complying with the requirement to report sales which have originated from a search of the alamy.com Group website. These spot checks may include, but are not limited to, contacting customers who have downloaded a comp image to see if they have bought the image direct from the Contributor and buying via a third party an image from the Contributor, in respect of which the Contributor agrees a refund shall be given if demanded.
Credits, Copyright Notices and Promotion
- alamy.com shall in its Gallery include the copyright notice supplied with the Image and request Customers who for editorial purposes take a Traditional License of any Images to add that notice to the work or material to which the Image is added.
- alamy.com shall have the right, including in advertising and publicity in any media, to use the name of any Contributor to advertise and promote the System with prior permission from the Contributor.
- Contributors may use alamy.com’s trademarks or service marks in any advertising, promotions or publicity without alamy.com's prior written consent, providing it is not pornographic, defamatory, libellous or otherwise unlawful.
- alamy.com shall have the right to offer Customers promotions on Images to promote the alamy.com service. This may result in lower than expected revenues from a Contributor's Images.
- The Contributor allows the Customer the right to alter their Images providing it is not pornographic, defamatory, libellous or otherwise unlawful and the Contributor undertakes that the person who created the Image has waived all moral rights in respect of the Image.
Loss of Images or Failure of System
- Due to the nature of server provision, downtime and lost transmissions may occur. In recognition of this it is agreed that alamy.com shall have no liability to any Contributor or Copyright Owner for:
- the loss of any Image or for any deterioration or damage to any Image on the System; or
- any failure of the System which causes lost License Fees.
- Contributors shall be responsible for maintaining original and digital back-up copies of all Images submitted to alamy.com and will provide replacement digital copies to alamy.com on request at any time.
- where Contributors make a submission by disc or any physical medium, alamy.com shall be under no obligation to return such disc or other property.
- Due to the nature of server provision, downtime and lost transmissions may occur. In recognition of this it is agreed that alamy.com shall have no liability to any Contributor or Copyright Owner for:
Liability of alamy
- alamy.com's liability for breach of clauses 5 and 6 or for any other breach of the provisions of this agreement or the delivery of its services shall not:
- exceed the lower of US$1,000 or the net payment made to the Contributor by alamy.com for the 12 month period prior to the date of the breach; or
- be claimed more than 12 months after the date of the alleged breach.
- clause 13a shall not preclude any claim for death or bodily injury nor any claim arising from wilful default or gross negligence on the part alamy.com or any person for whom alamy.com is legally responsible.
- alamy.com's liability for breach of clauses 5 and 6 or for any other breach of the provisions of this agreement or the delivery of its services shall not:
Termination
- The Contributor may terminate this contract:
- on 45 days' prior notice to alamy.com at any time save that where alamy.com has substantially contributed to the digitisation of the Images of any Contributor, no termination may be effected earlier than 12 months from the date of the contract;
- immediately by written notice to alamy.com if alamy.com:
- is in material breach of any provision of the contract having failed to remedy a 30 days' notice requiring alamy.com to remedy such breach;
- enters into insolvent liquidation;
- ceases to carry on its business of operating the System.
- alamy.com may terminate the contract immediately on written notice to the Contributor if:
- the Contributor is in material breach of this contract;
- the account of a Contributor is credited with License Fees in amounts of less than US$25 in any 12 month period;
- if no Image attributed to the Contributor has been the subject of a License Fee for a period of 12 months;
- if remittances by alamy.com shall not have been cashed in any 2 year period in which case alamy.com may remit the balance in the account of the Contributor to a charity of alamy.com's choice;
- it decides to terminate its operation of the System.
- On termination alamy.com shall:
- delete from its Gallery each Image provided by the Contributor in respect of a terminated contract;
- cease to grant Licenses for the Image so deleted;
- continue to account to the Contributor in respect of Licenses granted before termination;
- Invoice a Termination Fee equal to the credit balance on the account of the Contributor not exceeding US$25;
- not return to the Contributor any data, of whatever kind, relating to an image.
- alamy.com may at its discretion delete any Image which has not been licensed during such period as alamy.com may determine.
- The Contributor undertakes for himself/herself and the Copyright Owner that following termination neither of them will enter into any License or disposal which conflicts with any License granted during the period of this contract by alamy.com.
- The Contributor may terminate this contract:
Binding Effect
- This contract will continue for the benefit of and be binding upon alamy.com and the Contributor and their respective successors in title and assignees. The Contributor may only assign the contract with the prior consent of alamy.com.
- alamy.com may assign this contract to any third party and if it does so references herein to alamy.com shall thereafter be to such third party and references herein to the alamy.com Group shall be to any subsidiary of such third party, or the parent company of such third party or any subsidiary of such parent company.
Entire Agreement
alamy.com and the Contributor acknowledge that this contract constitutes the entire agreement between them with respect to the subject matter hereof and supersedes any prior agreement or arrangement.
Notices
- Any notice under this contract may be sent electronically to the email address notified by each party to the other and may also be sent by pre-paid first class post to the name and address notified in accordance with this clause. Contributors are requested to advise alamy.com of a second email address at all times which shall be the default address if the first email address does not function. A notice served under this clause shall be deemed to have been received on the expiration of 48 hours after service.
- alamy.com may also serve notice by a display on its website in a reasonably prominent position to which the attention of Contributors is drawn.
Marketing
alamy.com reserves the right to circulate the details of the Contributor to other companies within the alamy.com Group and alamy.com and such companies may contact the Contributor by email or otherwise about other services.
Choice of Law
This contract shall be agreed by English law and the parties submit to the non-exclusive jurisdiction of the English Courts. The English language version of this contract shall be the definitive one in the event of any dispute.