NativeFoto LTD (trading as NativeMirror)
TERMS OF SERVICE ("TOS")
Dear NativeMirror License User:
The following is a legal agreement between you or the employer or other entity on whose behalf you are entering into this agreement ("you") and NativeFoto LTD (trading as NativeMirror). Please read this agreement carefully before downloading any NativeMirror Images ("Image" or "Images"). By downloading any Image, you agree to be bound by the terms of this agreement, the NativeMirror Privacy Statement and NativeMirror's Website Terms of Service, which documents are incorporated herein and made a part hereof by this reference. NativeMirror reserves the right to change any of the terms of this agreement at any time, and you agree to be bound by such changes. If and when changes are made to these Terms of Service an announcement will appear on your login page. Please make sure that you read and understand all such changes. If you do not agree to these Terms of Service, as same may be amended from time to time, do not download or use any Images. Your failure to comply with the terms hereof could result in the immediate termination of your account
All Images on the NativeMirror website are protected by International copyright laws and treaties. NativeMirror and/or the various artists who provide content and/or Images to NativeMirror ("Submitters") own all rights, including the copyrights in and to the Images. NativeMirror and/or its Submitters reserve all rights in and to the Images not expressly granted to you by the terms of this license. Your rights to use any Image are subject to this license agreement and are conditioned upon your payment to NativeMirror for your use of the Images. If you fail to make any payment to NativeMirror when due, or if any check is dishonored or credit card charge refused or charged back, your account will be deemed delinquent. Provided that your account was current at the time you downloaded an Image and you were not otherwise in breach of any of the terms hereof (or of the terms of any other agreement between you and NativeMirror), you have the right to use the downloaded Image, subject however, to the terms of this agreement. If your account becomes delinquent, your right to use any Images downloaded at any time shall automatically terminate unless all payments together with any interest thereon and NativeMirror's costs of collection, bank charges and credit card processing fees are received by NativeMirror no later than fifteen (15) days from the date that your account became delinquent.
By this Agreement, NativeMirror grants you a personal, non-exclusive, non-transferable, right to use and reproduce Images in the following ways, subject to the limitations set forth herein and in Part II hereof:
On web sites, provided that no Image is displayed at a resolution greater than 1000 pixels on the largest side;
As toolbar skins, screensavers and mobile phone "wallpaper" for your own personal, non-commercial use, not for resale, download or distribution;
As prints, posters (i.e. a hardcopy) and other reproductions for decoration in a home, office, restaurant, public area, or store owned or rented by you or by a client for whom you render design services, with canvas or paper PRINT reproductions limited to one (1) per digital file download purchase;
As a hand painted reproduction (not as a printed reproduction) on canvas or other material to be used as decoration or resold;
In coordination with opt-in email marketing. However, Images cannot be used in connection with unsolicited email - or linked from unsolicited email;
On letterhead and business cards, pamphlets, brochures, catalogs and on pop up and/or panel displays for use in conventions and trade shows, without regard to the number of times an Image is reproduced, provided that the Image is not used as and does not function as a trademark, service mark or logo, or as an element thereof;
In the artwork for the packaging of any product without regard to the number of times an Image is reproduced;
Incorporated into software, including design or project templates, regardless of the size of the manufacturing or duplication run(s) of such software or the number of times such software is downloaded, provided that the Image or any digital files containing the Image cannot be unincorporated from the software or template;
In multimedia presentations and incorporated into film and video for television and/or internet broadcast, and theatrical display, without regard to the size of the intended audience;
In multimedia presentations and incorporated into film and video for distribution and/or sale in the home video market, without regard to the size of the manufacturing or duplication run (including downloads);
As CD or DVD cover art and/or artwork, without regard to the size of the manufacturing or duplication run (including downloads incorporating the artwork) of such CDs or DVDs;
As part of editorial or advertising copy in magazines, newspapers, books, book covers, textbooks, editorials and directories, without regard to the size of the manufacturing or duplication run (including downloads);
In eBooks, including multi seat license electronic textbooks, regardless of the size of the manufacturing or duplication run(s) of such software or the number of times such software or content is downloaded; and
Incorporated into merchandise for resale or distribution, without regard to the size of the manufacturing or duplication run of such merchandise (including downloads), including, without limitation, computers, computer peripherals, clothing, artwork, magnets, posters, and online and paper greeting cards, provided that such merchandise: a) combines words and an Image or Images; or b) the Image is not the primary factor driving the sale of such merchandise.
In the event that you create a derivative work based on or incorporating one or more Images, all rights in and to such Images shall continue to be owned by NativeMirror or its Submitter(s), subject to your rights to use such Image(s) pursuant to the terms and limitations set forth herein.
All rights in the Images not expressly granted herein are reserved by NativeMirror for itself and its Submitters.
YOU MAY NOT:
Use an Image other than as specified in PART I.
Use an image in a manner permitted under the License TOS if you did not download the Image as part of your License.
Use an Image together with pornographic, defamatory, or otherwise unlawful or immoral content or in such a manner that it infringes upon any third party's trademark or intellectual property rights.
Use an Image in a way that places any person depicted in the Image in a bad light or in a way that they may find offensive - this includes, but is not limited to, the use of Images: a) in pornography, "adult videos" or the like; b) in ads for tobacco products; c) in ads or promotional materials for adult entertainment clubs or similar venues, or for escort, dating or similar services; d) in connection with political endorsements; e) in advertisements or promotional materials for pharmaceutical or healthcare, herbal or medical products, including, but not limited to dietary supplements, digestive aids, herbal supplements, personal hygiene or birth control products; and f) uses that are defamatory, or contain otherwise unlawful, offensive or immoral content. You may not use an Image containing the likeness of a person if such use implies that the model engages in any immoral or illegal activity or suffers from a physical or mental infirmity, ailment or condition.
Resell, redistribute or transfer any Image except as specifically provided herein. Displaying any Image in any digital format or for any digital use at a resolution greater than 1000 pixels on the largest side, except in editorial or preliminary design work, will be deemed to be an attempt to redistribute the Image and could result in the termination of your rights under this agreement.
Share an Image by providing access to such Image on shared disk drives, computer networks, intranets of any nature or otherwise.
Use NativeMirror Images in a manner that competes with NativeMirror's business. This includes, by way of illustration only and not by way of limitation, displaying Images in any format (including thumbnails) for download on a website, and/or offering NativeMirror Images for sale or resale.
Withhold a credit attribution or fail to provide a copyright notice required by paragraph 32 of these TOS, except with an advance written waiver of that requirement from NativeMirror in each instance. Each waiver issued by NativeMirror will specify the Image number or numbers and the usage and is applicable only to the specified Image(s) and usage(s). Do not assume that you have or will receive a waiver for a proposed future use because you received a waiver in the past for a similar use.
Use an Image marked "Editorial Use Only" for commercial purposes. If an Image is marked, "Editorial Use Only", additional permissions may be required for commercial use. NativeMirror does not provide such permissions.
Use any Image (in whole or in part) as a trademark, service mark, logo, or other indication of origin, or as part thereof , or to otherwise endorse or imply the endorsement of any goods and/or services.
Use or display an Image in such a manner that gives the impression that the Image was created by you or a person other than the copyright holder of that Image.
Represent yourself as an agent, employee, designee, or affiliate of NativeMirror for any purpose, including but not limited to the negotiation of any business, distribution, partnership, or development agreement.
Stockpile, download, or otherwise store Images not used within twelve (12) months of the expiration of the under which you downloaded the Image
Use automated programs, applets, bots or the like to access the NativeMirror.com website or any content thereon for any purpose, including, by way of example only, downloading Images, indexing or caching the content of the website.
REFUND Policy. If you have purchased a NativeMirror image or video, and are unhappy with it for any reason, we will give you a full refund, provided that:
(i) You have not previously received more than two (2) refunds from NativeMirror;
(ii) Your NativeMirror purchase was not part of a free trial period; or
(iii) You have breached any of the NativeMirror Terms of Service or any other agreement with NativeMirror.
Any refunds will be made to the same credit card or other payment method used to process your NativeMirror purchase.
"Non-transferable" as used herein means that except as specifically provided in these TOS, you may not sell, rent, load, give, sublicense, or otherwise transfer to anyone, the Image or the right to use the Image. You may however, transfer Images to a third party for the sole purpose of causing such third party to produce and/or manufacture your goods incorporating Images subject to the terms and conditions herein. In addition, the work you produce with the Image must be used for yourself, your direct employer, client, or customer, who must be the end user of your work. You agree to take all commercially responsible steps to prevent third parties from duplicating any Image. If you become aware of any unauthorized duplication of any NativeMirror Image(s) please notify us via email at NativeMirror@gmail.com.
If you plan on using or do use Images as part of work for a client or customer, you must keep accurate and detailed records of the use of each Image. These records must include the name of the client or customer, the NativeMirror Image number as well as the date or dates on which the Images were used. You shall deliver copies of such records to NativeMirror at NativeMirror's request.
You agree that you will not share your username and password combination. Your NativeMirror username and password are to be used only by you. Every user that desires to make a purchase from the NativeMirror site must have his/her own username and password. We reserve the right to monitor accounts and institute mechanical or other means to stop users from sharing their login information.
You agree to indemnify and hold NativeMirror , its officers, employees, shareholders, directors, managers, members and suppliers harmless against any damages or liability of any kind arising from any use of the Image other than the uses expressly permitted by this Agreement. You further agree to indemnify NativeMirror for all costs and expenses that NativeMirror incurs in the event that you breach any of the terms of this or any other agreement with NativeMirror.
NativeMirror warrants and represents that:
unaltered Images downloaded and used in full compliance with these TOS and applicable law, will not infringe any copyright, trademark or other intellectual property right, nor will such unaltered Images violate any third parties' rights of privacy or publicity;
Unaltered Images do not and will not: (i) violate any US Law, statute, ordinance, or regulation; Laws as applied in European Union (EU) nations; or Laws as applied in Caribbean Common Market (CARICOM) Territories (ii) be defamatory or libelous; or (iii) be pornographic or obscene.
While NativeMirror makes commercially reasonable efforts to ensure the accuracy of Image keywords and descriptions, as well as the integrity of our Editorial Images, NativeMirror makes no warranties and/or representations regarding such keywords, Image descriptions or integrity.
Subject to the terms hereof, and provided that you have not breached the terms of this or any other agreement with NativeMirror, NativeMirror shall defend, indemnify, and hold you harmless up to the "Limits of Liability" (as hereinafter defined). Such indemnification shall only apply to claims for damages directly attributable to NativeMirror's breach of the foregoing warranties and representations, together with the expenses (including reasonable attorneys' fees), arising out of or directly connected to any actual or threatened lawsuit, claim, or legal proceeding alleging that the possession, distribution, or use of Images downloaded and used by you pursuant to these TOS violate NativeMirror's warranties contained herein. This indemnification is conditioned upon you notifying NativeMirror, in writing, of any such claim or threatened claim, no later than five (5) business days from the date you know or reasonably should have known of the claim or threatened claim. Such notification must include all details of the claim then known to you (e.g., NativeMirror Image Number, a copy of the Image as used, name and contact information of person and/or entity making the claim, nature and date of alleged claim, copies of any correspondence received and/or sent in connection with the claim). The notification must be emailed to NativeMirror at NativeMirror@gmail.com with a hard copy to NativeMirror , #8 Rainbow Crescent, Five Rivers, Arouca, Trinidad & Tobago, W.I. Attention: Managing Director, via Certified Mail, Return Receipt Requested, or overnight courier, recipient's signature required. NativeMirror shall have the right to assume the handling, settlement or defense of any claim or litigation to which this indemnification applies. You agree to cooperate with NativeMirror in the defense of any such claim and shall have the right to participate in any litigation at your own expense. NativeMirror shall not be liable for any legal fees and/or other costs incurred prior to receiving complete notification of the claim as provided herein.
Notwithstanding anything to the contrary contained herein, NativeMirror shall not be liable for any damages, costs or losses arising as a result of modifications made to Images or the context in which the Images are used by you.
NativeMirror's total maximum aggregate obligation and liability to any one subscriber for all claims shall be limited to Three Thousand United States Dollars - US$3,000.00 - (the "Limits of Liability").
This contract is governed by and shall be construed in accordance with the laws of the Republic of Trinidad and Tobago. The United Nations Convention on Contracts for the International Sale of Goods does not apply to or otherwise affect these TOS. You hereby consent to the personal jurisdiction of the courts located within Trinidad and Tobago. All actions, controversies and disputes arising from or relating to this agreement shall be heard and decided exclusively before the courts located within Trinidad and Tobago and not elsewhere. You agree that service of process in any actions, controversies and disputes arising from or relating to these TOS may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the other party however, nothing herein shall affect the right to effect service of process in any other manner permitted by law. This agreement shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning of the language hereof. The invalidity or unenforceability of any part of this agreement shall not affect the validity or enforceability of the balance hereof.
If you are unsure of your rights under this agreement, or if you wish to use an Image in a manner not expressly permitted under this License agreement, please contact NativeMirror@gmail.com
If you are entering into this agreement on behalf of your employer or other entity, you warrant and represent that you have the full right and authority to do so. In the event that you do not have such authority, you agree that you will be personally liable to NativeMirror for any breaches of the terms of this agreement.
For the purposes of this agreement, a day is defined as the twenty four (24) hour period beginning at the time your purchase. A month is defined as thirty (30) consecutive days beginning on and including the date that you make your purchase.
Credit Attributions and Copyright Notices
Though NativeMirror requires the following credit attributions and copyright notices, NativeMirror may waive such requirements on a case by case basis. If you have any questions regarding credit attributions and copyright notices or to request that NativeMirror grant you a waiver of such requirements, please contact NativeMirror at NativeMirror@gmail.com . No waiver of such requirements shall be effective unless confirmed in an email or other writing from NativeMirror to you.
You shall accord credit and provide a copyright attribution to the copyright holder and to NativeMirror in connection with the use of any Image in a book, magazine, e-zine or newspaper. Such credit and attribution shall be in substantially the following form:
"Image Copyright Name of Artist, 2013 Used under license from NativeMirror.com".
Notwithstanding the foregoing, in the event that the Image is used in connection with merchandise, or a film, television broadcast, documentary or other video or multimedia project or presentation, you shall use reasonable commercial efforts to accord the copyright holder and NativeMirror a credit as provided above. However, if no other copyright holders are accorded credit, only NativeMirror shall be accorded a credit in substantially the following form:
"Image(s) used under license from NativeMirror.com".
All credits shall appear on the copyright page or in the copyright section of the work into which the Image is incorporated. If there is no copyright page or section, the notice and credit may be located anyplace on the work. In all cases the credit and attribution shall be of such size, color and prominence so as to be clearly and easily readable by the unaided eye.
At NativeMirror we’re so sure that you’re going to love your experience that we guarantee it! If you have purchased a NativeMirror image or video, and are unhappy with it for any reason, we will give you a full refund, provided that:
Any refunds will be made to the same credit card or other payment method used to process your NativeMirror purchase.
IN THE EVENT THAT YOU BREACH ANY OF THE TERMS OF THIS OR ANY OTHER AGREEMENT WITH NativeMirror, NativeMirror SHALL HAVE THE RIGHT TO TERMINATE YOUR ACCOUNT WITHOUT FURTHER NOTICE. SUCH TERMINATION SHALL BE IN ADDITION TO NativeMirror'S OTHER RIGHTS AT LAW AND/OR EQUITY. NativeMirror SHALL BE UNDER NO OBLIGATION TO REFUND ANY FEES PAID BY YOU IN THE EVENT THAT YOUR ACCOUNT IS TERMINATED BY REASON OF ANY SUCH BREACH OR BREACHES.
NativeMirror MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER OTHER THAN THOSE EXPRESSLY MADE IN PARAGRAPH 24 HEREOF, AS TO THE LEGALITY OR VALIDITY OF ANY RELEASE ASSOCIATED WITH AN IMAGE. EXCEPT AS PROVIDED ABOVE, THE IMAGE(S), STORAGE MEDIA AND ACCOMPANYING MATERIALS (IF APPLICABLE) ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
NativeMirror GRANTS NO RIGHTS AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE USE OF ANY NAMES, TRADEMARKS, LOGOTYPES, COPYRIGHTED DESIGNS OR WORKS OF ART OR ARCHITECTURE DEPICTED IN ANY IMAGE. IT IS YOUR RESPONSIBILITY TO ASSURE THAT ALL NECESSARY RIGHTS, CONSENTS, OR PERMISSIONS THAT MAY BE REQUIRED FOR YOUR USE OF ANY IMAGES ARE OBTAINED.
NativeMirror DOES NOT WARRANT THAT THE IMAGE(S), NativeMirror WEBSITES, OR OTHER MATERIALS, WILL MEET YOUR REQUIREMENTS OR THAT USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE AND USE OF THE IMAGE(S) IS SOLELY WITH YOU.
YOU UNDERSTAND THAT YOU SHOULD SEEK COMPETENT COUNSEL BEFORE USING IMAGES ON OR IN CONNECTION WITH ANY GOODS OR SERVICES OR FOR ANY OTHER COMMERCIAL PURPOSES.
EXCEPT AS SPECIFICALLY PROVIDED IN PARAGRAPH 25 HEREOF, IN NO EVENT, SHALL NativeMirror'S TOTAL AGGREGATE LIABILITY TO YOU, OR TO ANY THIRD PARTY CLAIMING THROUGH YOU, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE NativeMirror WEBSITE AND/OR IMAGE(S) CONTAINED THEREON (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE MONETARY AMOUNT ACTUALLY RECEIVED BY NativeMirror FROM YOU FOR YOUR USE OF THE APPLICABLE IMAGE(S). NEITHER NativeMirror NOR ANY OF ITS OFFICERS, EMPLOYEES MANAGERS, MEMBERS, SHAREHOLDERS, DIRECTORS OR SUPPLIERS SHALL BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF YOUR USE OF THE IMAGE(S), NativeMirror'S BREACH OF THIS AGREEMENT, OR OTHERWISE, UNLESS EXPRESSLY PROVIDED FOR HEREIN, EVEN IF NativeMirror HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. IN NO EVENT, SHALL NativeMirror'S TOTAL AGGREGATE LIABILITY TO YOU, OR TO ANY THIRD PARTY CLAIMING THROUGH YOU, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE NativeMirror WEBSITE AND/OR IMAGE(S) CONTAINED THEREON (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE LIMITS OF LIABILITY.
IN THE EVENT THAT YOU USE FRAUDULENT CREDIT CARD INFORMATION TO OPEN AN ACCOUNT OR OTHERWISE ENGAGE IN ANY CRIMINAL ACTIVITY AFFECTING NativeMirror, NativeMirror WILL PROMPTLY FILE A COMPLAINT WITH THE RELEVANT LOCAL AND OR INTERNATIONAL CRIMINAL COMPLAINT AUTHORITIES.