OTTOARCHIVE.COM TERMS AND CONDITIONS OF USE
These terms and conditions of use ("Terms") are a binding contract between OTTO Archive, LLC ("Company" or "we"), owner of the website located at www.ottoarchive.com (the "Website" or "Site"), and you. Before using the Website, please read these Terms relating to your use of the site carefully. By using the site, you agree to be bound by these terms. If you do not agree to these Terms, you are not authorized to use the Site. Any information or services we provide to you on or through the Site is conditioned upon your acceptance, without modification, of these terms. This agreement is in addition to your obligations under any applicable Image License Agreement between you and the Company. In the event of any conflict between these Terms and any such License Agreement, the License Agreement will control as to the conflicting terms. We reserve the right to alter, modify or update these Terms, and you agree to be bound by such modifications, alterations or updates.
The primary purpose of this Website is to preview photographic images ("Images") for licensing. If you are obtaining Image reproduction rights on behalf of a company, you represent that you have the authority and right to bind the company to the terms contained in this agreement. Company reserves the right from time to time to modify or discontinue, temporarily or permanently, the Site (or any part thereof). We will not be liable to you or any third party for any such modification, suspension or discontinuance.
OWNERSHIP OF THE WEBSITE
All elements of the site, including any images, captions, content, layout, navigation and design (the "Content"), are owned by Company or its licensors, and are protected by copyright, trademark, trade dress and other US and international laws or treaties relating to intellectual property. Except as explicitly permitted under these Terms or any applicable License Agreement, no portion or element of this Site or its content may be copied or retransmitted via any means, and all related rights shall remain the exclusive property of the Company.
This Site is intended for use by persons who are at least 18 years old, and the Company does not knowingly solicit or accept personally identifiable information from users known to be under 18 years of age. By using the Site, you represent and warrant that you are at least 18 years old. Subject to full compliance with these Terms, the Company grants you a limited, personal, nontransferable, nonexclusive right and license to view Images solely for evaluating whether you wish to purchase a license to the image according to an Image License Agreement applicable to your use. For the avoidance of doubt, Images may not be used in any final materials distributed internally or to the public without the express, prior written consent of the Company. The Company reserves all other rights in the Images, on its own behalf and the behalf of its licensors, and does not, directly or by implication, by estoppels or otherwise, grant any other rights or licenses to you under these Terms. Except for internal viewing for the limited purpose described herein, you may not reproduce, distribute, modify, publicly perform or display, or prepare derivative works of any Content or Image without the prior written consent of the Company. You must contact the Company to obtain a license for any additional use. Unless authorized by the Company in writing, you may not:
- deep link or employ software or any automatic device, technology or algorithm, to "crawl," "scrape," search or monitor the Site and/or retrieve or copy Content or related information;
- violate the mechanical restrictions of the Site, or bypass other measures employed to prevent or limit access to the Site or Content by hacking or other means;
- copy, frame, redirect, or exploit the Site or any Content;
- probe, scan, or test the vulnerability of the Site or of the network supporting the Site, or seek information on visitors to the Site or personal information of Site users;
- use any device, software or routine that would interfere with the proper functioning of the Site, or any transaction conducted via the Site.
- gather or use information, such as email addresses, available through the Site to transmit any unsolicited advertising, "junk mail," "spam," or "chain letters";
- impersonate or misrepresent your affiliation with any person or entity;
- use the Site in any way that violates any applicable local, state, national or international law, regulation, or statute (including export laws);
- use an Image in a manner that is defamatory, pornographic or obscene, whether directly or in context or juxtaposition with specific subject matter or use an Image in any way that violates a depicted person's right of privacy or publicity, or infringing on any trade name, trademark or service mark;
- archive, republishing or transmit any Images on any database or to a network or bulletin board or otherwise distribute or allow any of the Images to be distributed to or used by anyone other than an authorized users, as described herein, without prior written consent from the Company;
- use any Image in any electronic template or application, including those that are web-based, where the purpose is to create multiple impressions of an electronic or printed product, including, but not limited to, website designs, presentation templates, electronic greeting cards, business cards or any other electronic or printed matter without obtaining a license for such purpose; and
- use any Images to promote a business that sells or licenses photographic images, or otherwise competes with Company or adversely affects Company's best interests in any manner.
The Company reserves the right, in its sole discretion, to revoke your authorization to view or otherwise use the Images or any other Content and information available on the Site at any time and for any reason, with or without notice to you of such revocation, and you agree to immediately discontinue such use upon notice by the Company. Any improper use of the Content will be treated as copyright infringement and/or breach of contract and will be prosecuted to the full extent of the law.
You may not use the Company trademarks or service marks of without its prior written consent. "VH", "Vaughan Hannigan", and "OTTO", among others, are trademarks of the Company.
Payment of any invoice hereunder is due and payable within 30 days after you receive it. In no event will any payment hereunder be contingent on receipt by you of any compensation from third parties. All of your rights hereunder are conditioned on Company's receipt of full payment of all amounts due. Late payments shall accrue interest at the rate of 1.5% per month. The Company shall be entitled to all of its costs of collection of amounts outstanding hereunder, including reasonable attorney fees.
CONTENT ON THE SITE
The Digital Millennium Copyright Act of 1998 ("DMCA"). The "DMCA" provides recourse to those who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted or disseminated by the Company infringe your copyright, you may send the Company a notice requesting that the Company remove the material or block access to it. The notice must include the following information:
- Physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Site are covered by a single notification, a representative list of such works);
- Identification of the material that is claimed to be infringing or the subject of infringing activity and information reasonably sufficient to allow us to locate the material on the Site;
- The name, address, telephone number, and email address of the complaining party;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner or the law; and
- A statement that the information in the notification is accurate and is given under penalty of perjury, and that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet current statutory requirements imposed by the DMCA; see http://www.copyright.gov for details. Notices and counter-notices under the DMCA, as well as all other communications addressed to us relating to this Agreement, should be sent to:
We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, please be aware that penalties may apply for false claims under the DMCA.
You agree to indemnify, defend and hold harmless Company and its subsidiaries and affiliates and their respective officers, directors, employees, agents, and suppliers from any and all claims, demands, damages, costs and liabilities, including reasonable attorneys' fees, made by any third party arising out of your violation of the intellectual property rights of any third party, your use of the Site or the Site Content, and your violation of these Terms.
Company gives no rights or warranties with respect to the use of names, trademarks, logos, registered or copyrighted designs or works of art depicted in any Image. Company has provided caption and other information for each Image to the best of its ability, but cannot be held responsible for erroneous or incomplete caption information. You should be aware that Content may include subject matter that may seem inappropriate, or text that could be potentially offensive. Content, including Images, is provided "as is." Company makes no representation or warranty, either express or implied, including but not limited to any implied warranties of merchantability, fitness for any particular purpose, quality of Image, or compatibility with any computer hardware or other equipment, operating system or software program. Company makes no representation or warranties that your use of the site will be uninterrupted or error free. Use of this site is at your own risk.
No model releases or other releases exist on any Image unless the existence of such release is specified in writing by Company. If you are unsure whether additional third-party rights are needed for your use, you are responsible for consulting with competent rights management professionals or legal counsel.
LIMITATION OF LIABILITY
Under no circumstances will Company or the owner of the Images be liable for any direct, incidental, consequential, indirect or punitive damages as a result of the use of this site or from your access or use of the Images on this site. In any event, the limit of liability of the copyright owner of the Image and Company shall be not greater that the fee paid for the Image to Company.
UNAUTHORIZED USE/RETROACTIVE LICENSE
Since it is difficult to determine damages resulting from unauthorized usage, in the event you utilize an Image other than as permitted by this agreement, we agree to forego our right to sue you for copyright infringement and you agree to pay, as liquidated damages and not as a penalty, a retroactive license fee equal to ten (10) times the customary price we would have charged for such unauthorized use within ten (10) days of our billing such fee. If you fail to timely make such payment, this liquidated damage provision shall be void at our option, and we shall have the right to sue you for copyright infringement and/or breach of contract, for which we may seek all damages and remedies available, including attorney's fees and all associated costs.
These Terms automatically terminate if you violate any part of them, and after termination you are no longer authorized to access or otherwise use the Site or the Content. We may cancel your account at any time, including if we reasonably believe that you have violated or acted inconsistently with these Terms or violated the Company's rights or those of another party. You agree that we may terminate your access to the Site or cancel your account without prior notice. If your account is canceled, you may no longer have access to Images on the Site. The provisions entitled "General Disclaimers," "Indemnity," "Limitation of Liability," and "Miscellaneous" will survive termination of these Terms.
You are responsible for compliance with applicable local laws, keeping in mind that access to the Site Content may not be legal by certain persons or in certain countries. If any part of these Terms is held to be unenforceable, the unenforceable part will be given effect to the greatest extent possible and the remainder will remain in full force and effect. These Terms are personal to you and you may not transfer, assign or delegate these Terms to anyone without the express written permission of Company. Any attempt by you to assign, transfer or delegate these Terms without the express written permission of Company will be null and void. These Terms will be governed by the laws of the state of New York, NY without regard to its conflicts of law provisions. You and Company agree to submit to the personal and exclusive jurisdiction of the courts located within New York County, New York. If you are an agent for or an employee of a non-U.S. person or entity but operate in a place of business in the United States or its territories, you expressly agree that any dispute regarding this contract shall be adjudicated within the United States in the manner described herein. Copyright claims shall be brought in the U.S. District Court having jurisdiction, to which jurisdiction you shall be subject. Any action concerning any dispute you may have with respect to this Site must be commenced within one year after the cause of the dispute arises, or the cause of action is barred. The paragraph headings in these Terms are included to help make these Terms easier to read and have no binding effect. These Terms comprise the entire agreement between You and Company with respect to the use of the Site and supersedes all prior agreements between the parties regarding the subject matter contained herein. The failure of Company to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
This contract contains all the terms of the agreement between you and Company concerning transmission, delivery, and review of Images, and no term or conditions may be added or deleted unless made in writing and signed by both of us. These Terms and the terms of any subsequent invoice supersede any and all terms of the client's purchase order. Any subsequent invoice may contain additional terms relating to the rights granted and the type of usage allowed.