EastPro Limited – Terms and Conditions of Licence and Use of Contents Last Revised: March 1st, 2018
These terms and conditions (these “Terms and Conditions”) constitute a legally binding licence agreement (“Agreement”) between you and EastPro Limited (“EastPro”). By downloading or using any of the photographs, illustrations, pictures, images, audio, video clips, moving images, contents, texts, logos, graphics, literature, information, data and other materials and contents within the website www.eastprophoto.com (collectively the “Contents” and “Content” shall be construed accordingly), you accept and agree to be bound by, and to comply with, these Terms and Conditions.
If you are not at least 18 years of age and, in any event, of a legal age to form a binding contract with EastPro, please do not download or use any Contents. By downloading or using any Contents, you represent and warrant that you are over 18 years of age and are lawfully able to accept and be bound by these Terms and Conditions.
EastPro may also revise these Terms and Conditions from time to time by updating this posting. You agree that all notices posted on the website www.eastprophoto.com (“Website”) constitute valid notices to you under any legal requirements. You are encouraged to visit this area each time you wish to download or use any of the Contents to keep up to date with the current Terms and Conditions. Your continued downloading or use of any Content after any such change or revision reaffirms your continuing agreement to the then-current Terms and Conditions posted on the Website. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, PLEASE DO NOT DOWNLOAD OR USE ANY CONTENT.
Subject to these Terms and Conditions, you are granted a non-exclusive, non-transferable, non-sublicensable and limited licence to access, download and use any of the Contents made available on the Website in accordance with the following categories of licence.
1.1 Browsing Right
(a) You are entitled to use the watermarked Contents on the Website (“Watermarked Contents”) on a complimentary basis for viewing, appreciation, testing or private and personal use purposes only.
(b) Watermarked Contents cannot be shared with or redistributed to any third parties, or used for any commercial purpose or incorporated into any other materials for non-personal use.
(c) Watermarked Contents cannot be used for any editorial purposes.
1.2 Standard Licence
(d) If you are an Authorized User (as defined below) and you have purchased a standard licence, you are granted a non-exclusive, non-transferable, non-sublicensable and limited licence to access, download and use the Licensed Contents on websites, social media, mobile apps, e-cards, for online advertising, mobile advertising, email marketing, in software, and e-publications such as e-books and e-magazines for not more than three hundred thousand (200,000) times, save and except for any purposes restricted under these Terms and Conditions (“Standard Licensed Contents”).
For the purposes of these Terms and Conditions, “use” means to copy, reproduce, display, broadcast, publish or otherwise make use of for the permitted purposes as stipulated in these Terms and Conditions.
(e) You can print up to three hundred thousand (200,000) copies in aggregate for each of the Standard Licensed Contents in physical print form as part of letterhead, business cards, point of sale advertising, billboards, in magazines, and newspapers.
(f) If you are purchasing the licence on behalf of your employer or customer, then subject to your warranty and representation that you have the full legal authority to bind your employer or customer (as the case may be) to these Terms and Conditions, your employer or customer, as the case may be, can use the Standard Licensed Contents according to these Terms and Conditions. If you do not have such legal authority, then your employer or customer will not be entitled to use the Standard Licensed Contents.
(g) An “Authorized User” means you, as an organization or as an individual, who has paid the designated licence fee for the downloading and use of the Licensed Contents in accordance with these Terms and Conditions.
If an Authorized User is an organization, you accept full responsibility for any breach of these Terms and Conditions by any person within your organization or in connection with your account. You shall, upon request of EastPro, provide reasonable evidence showing that any individual who uses any license granted pursuant to these Terms and Conditions is an Authorized User.
“Licensed Contents” mean those Contents for which a licence fee has been paid and which have been validly licensed to an Authorized User for use under these Terms and Conditions, whether it is a standard licence or an extended licence.
(h) From time to time, EastPro may offer bulk licence discounts on the Contents. EastPro reserves the right to amend, revise or add the bulk licence discounts or new member subscription fee or any other discounts, promotion or offer without prior notice.
1.3 Extended Licence
(a) If you are an Authorized User and you wish to purchase an extended licence, you may do so by clicking the relevant check box on the Website. Upon receipt of your request, we will contact the contributor for a price quote and will respond to you within a reasonable time.
(b) Once you have paid for an extended licence for the Contents (“Extended Licensed Contents”), you will be entitled to the same rights as those offered for Standard Licensed Contents.
(c) In addition, as from the date of purchase, you may be able to block the Extended Licensed Contents from other subsequent users for a fixed period of [twelve (12)] months from the date of purchase so that the Extended Licensed Contents will not be available for browsing or licence on the Website during such period.
(d) There will be no limit on the number of copies or reproductions that you can make of the Extended Licensed Contents and they may be used by multiple employees of the Authorized User if it is an organization.
(e) The Extended Licensed Contents grants the right to incorporate into merchandize intended for sale and distribution of product packaging, books, CD and DVD covers, textiles, artwork, magnets, calendars, toys, stationery, greeting cards, mugs, mouse pads.
(f) The Extended License grants the right to use images or printed photo in wall art for decorative purposes in a commercial space owned by you or your client, and not for sale.
Any rights or interests not expressly granted under these Terms and Conditions shall be excluded unless otherwise agreed by EastPro.
EastPro may discontinue licensing any of the Contents at any time in its sole discretion.
In addition, upon receipt of any threat or claim of infringement of any third party’s right, EastPro may require you, at your own cost and expense, to immediately cease any use of the Licensed Contents in question and to delete and remove any copies thereof and procure that the same is done by your employer, distributors and customers. You hereby agree and undertake to do so upon EastPro’s request.
If this happens, EastPro will provide you with a replacement Content of the same price value, free of charge, subject to the same licence category and applicable Terms and Conditions.
2. Limitations on Use
2.1 You and all Authorized Users are prohibited from using the Contents in any way that allows any third party (without obtaining a licence from us) to download, store, edit, sell, reproduce, transmit, disseminate, adapt, circulate, broadcast, publish, display, copy, distribute, use or create derivative work from, any Contents by any means, in any manner or for any purpose, and/or authorizing or permitting any person to do the same.
2.2 For Watermarked Contents, you shall not use it for any commercial, promotional, advertising or merchandising purpose. You are only entitled to a browsing right of such Contents.
2.3 You agree to use the Contents in accordance with all applicable laws, regulations, rules, and orders of any government, administrative authority or court, and not to use any Contents for any unlawful or unauthorized purposes or in any illegal, unauthorized, defamatory, pornographic or unreputable manner.
2.4 You may not remove, cancel or alter any watermark, copyright or other proprietary notices contained in the Contents.
2.5 You may not use any of the Contents as part of a trademark, service mark, device mark, logo, trade name, business name or company name.
2.6 You may not falsely represent that you are the original creator of any of the Contents or of an end product that is based solely or substantially on the Licensed Contents.
2.7 Unless it is Extended Licensed Contents, you may not:
(a) use any of the Contents in connection with any goods or services intended for resale or distribution where the primary value lies in the Contents, such as textile, books, cards, stationery items, paper products, posters, compact discs, digital video discs, mobile applications, customized made-to-order products, and other items for resale, license or other distribution for profit;
(b) store the Contents on a server giving more than one person simultaneous access to the Contents;
(c) reproduce any of the Contents for more than three hundred thousand (200,000) copies in physical print form.
2.8 Unless you have purchased an extended licence, the standard licence is for a single user only.
2.9 Notwithstanding anything to the contrary provided, nothing herein shall grant you any right to access, download or use the Contents without applying for sufficient licences for using the Contents, unless it is only for browsing purpose.
3. User Account
3.1 You have to be registered as a member before you can purchase any licence from us. You will be solely responsible for tracking all activities for your user account and to keep your user name and password secure and confidential. You will immediately notify EastPro in writing if you become aware of any security breach or unauthorized use of your account. You shall be fully responsible for all activities occurring under your account and you acknowledge and agree that EastPro has a right to monitor downloads and user activities and has the right to suspend or terminate your account if you are found to be in breach of any of these Terms and Conditions, without prejudice to any of EastPro’s rights and remedies against you for such breach.
4. Intellectual Property Rights
4.1 All rights (including all intellectual property rights), title and interest in the Contents, in any formats and media throughout the world, including all copyrights and trademarks, including but not limited to the mark “EastPro” (“EastPro Trademark”) therein, belong exclusively to EastPro and/or the relevant third party suppliers of the Contents. You, any Authorized User, your employer, customers or any other persons within your organization, absolutely acquire no right, title or interest in the Contents or copies thereof save and except for the limited license to access, download and use the same as provided in these Terms and Conditions. You further agree not to modify any such Contents or Trademarks without EastPro’s and the relevant third party suppliers’ prior written consent. Any use of the EastPro Trademark will inure to the benefit of EastPro.
4.2 You agree to use reasonable efforts to protect the rights, title and interest of EastPro and/or third party suppliers of the Contents during and after the term of the licences granted for the Licensed Contents and to comply with all reasonable requests made by EastPro to protect such rights, title and interest (including but not limited to executing any document to confirm EastPro’s and/or third party suppliers’ ownership of such rights, titles and interests in the Contents).
4.3 You acknowledge that in the event of infringement of any of the said rights, title and interest by you, an Authorized User or any persons through your account:
(a) EastPro shall be entitled to immediately terminate this Agreement and restrict any further access, download or use of the Contents by you or your Authorized Users, provided that all fees already paid to EastPro for Licensed Contents prior to such termination shall not be refundable, and you shall also pay EastPro upon demand all accrued fees, charges and other costs and expenses which would have been payable by you to EastPro for the Licensed Contents on or before the date of termination.
(b) EastPro and the third party suppliers of the Contents shall suffer irreparable harm not compensable by money damages. Accordingly, you hereby irrevocably agree that EastPro and the third party suppliers of the Contents shall be entitled to injunctive relief against you to enforce the said rights, title and interest in addition to any other remedy at law or under these Terms and Conditions.
4.4 You also acknowledge and agree that in some situations, a trademark or a trade name of your organization may appear together with EastPro Trademark or some other trademarks or trade names of third party Contents suppliers on an interface, a printout of the Contents, a hyperlink, deep link or otherwise. You agree that any such use of the trademarks shall not in any way create any co-branding, partnership, collaboration or joint venture between the parties for any purpose whatsoever and shall not create any licence to use any of these trademarks except with the prior written consent of the relevant owner and for the specified purpose.
5. Fees and Payment
5.1 In consideration of the licence, right and/or benefit to the Contents provided to you, you agree to pay EastPro such licence fees as listed on the Website. The fees shall be paid before downloading the Contents. All licence fees paid to EastPro are nonrefundable.
5.2 You are solely responsible for any and all taxes, duties and charges imposed by any jurisdiction as a result of the licence granted to you under these Terms and Conditions or of your use of the Contents.
5.3 You are responsible for mailing and logistics costs for delivering physical purchased items to you, if any. Such delivery costs shall be paid by you before delivery. All delivery costs paid to EastPro are nonrefundable.
6.1 This Agreement is effective until it is terminated by EastPro or you. You may terminate this Agreement by:
(a) accessing the relevant feature in “My Account” on the Website or by contacting us via the contact information provided on the “Contact Us” page of the Website; and
(b) ceasing any use of the Watermarked Contents or Licensed Contents; and
(c) deleting and destroying all copies of the Contents.
6.2 EastPro may terminate this Agreement with you or your account if you, in EastPro’s reasonable belief, fail to comply with any of these Terms and Conditions, or if you become, or are in jeopardy of becoming, insolvent.
6.3 Where this Agreement is being terminated under Clause 6.1 or 6.2, you shall:
a) pay EastPro all accrued fees, charges and other costs and expenses which would have been payable by you to EastPro as at the date of such termination. All fees or costs already paid to EastPro prior to such termination shall not be refundable;
b) cease all access, downloading or use of the Contents;
c) delete and destroy all copies of the Contents and remove and delete all digital copies from your servers;
d) remove and delete the Contents from any social media platform or other third party websites or platforms; and
e) confirm to EastPro, upon its request, that you have duly complied with these requirements.
6.4 Any termination of this Agreement shall not affect any accrued rights or liabilities of either party, including rights to injunctive relief, before the date of termination.
6.5 Clauses 2, 4, 6.3, 6.4, 7, 8 and 9 and all other provisions which by their nature should survive termination or expiration shall survive the termination or expiration of this Agreement.
7. Warranty and Limitation of Liability
7.1 All Contents are owned by the relevant artists or third parties. EastPro warrants that, to the best knowledge and belief of EastPro, it has the right and authority to make the Contents available to you pursuant to these Terms and Conditions. However, EastPro is not responsible or liable for and does not accept liability for any claims, modifications or edits made to the Contents. EastPro does not endorse or approve any end product incorporating the Contents.
7.2 Any licence granted under these Terms and Conditions does not include any grant of right or provide any warranty with regard to the use of names, people, trademarks, logos, designs, works of art or architecture depicted or contained in the Contents. In such cases, you are solely responsible for determining whether any further release is required for your use of the Contents. EastPro shall not be responsible for any direct or indirect damage or loss or claims caused by or in connection with the use of or reliance on any such Contents.
7.3 You further acknowledge that the Contents are provided to you "AS IS" and “AS AVAILABLE” and Clause 7.1 contains the only warranty made by EastPro in relation to the Contents and any and all other warranties of any kind whatsoever are hereby expressly excluded and disclaimed. Without limiting the generality of the preceding sentence, to the full extent permitted by law, EastPro hereby expressly disclaim warranty of any kind, whether express or implied, statutory or otherwise, including, but not limited to, merchantability, quality or fitness for a particular purpose or that its use will be uninterrupted or error free.
7.4 While EastPro and third party Contents suppliers have made reasonable efforts to categorize, keyword, caption and title the Contents, they do not warrant the accuracy of such information or of any metadata provided with the Contents.
7.5 You agree that to the extent permitted by applicable law, the liability of EastPro and third party Contents suppliers for any damages, losses, costs and expenses arising out of or related to the Contents, whether in contract, equity, negligence or otherwise, shall be limited to and not exceed, in the aggregate for all claims and causes of action of any kind, the total amount paid by you for the Contents. In no event shall EastPro or the third party Contents suppliers be liable to you or any Authorized User or any other party for any incidental, consequential, special, economic, punitive or indirect loss or damages of any kind incurred by you or such other party, arising out of or in connection with the use of the Contents or this Agreement, even if EastPro has been advised of the possibility of such loss or damages.
8.1 You agree to indemnify and hold the third party Contents suppliers, EastPro and all of EastPro’s directors, officers and employees harmless from and against any and all claims, losses, liability, costs and expenses (including legal costs) arising from or relating to any violation of these Terms and Conditions or of any third party’s rights (including intellectual property rights) by you, any Authorized User or any person using your account, whether or not authorized by you.
9.1 Your access, downloading or use of the Contents constitutes your full and unconditional agreement to all provisions of these Terms and Conditions. From time to time, EastPro may modify any provision of these Terms and Conditions or impose additional terms. Such modifications or the additional terms shall automatically become effective and be incorporated by reference into this Agreement on the “Last Revised” date specified at the beginning of these Terms and Conditions (“effective date”). Your continued use of the Contents after the effective date of any modifications or additional terms will constitute your acceptance of the relevant modified or additional terms. If you do not wish to accept any modifications to this Agreement or any additional terms proposed by EastPro, you may terminate this Agreement in accordance with Clause 6.
9.2 In the event of any inconsistency between these Terms and Conditions and any purchase order sent by you, these Terms and Conditions shall prevail.
9.3 This Agreement is personal to you. You may not assign, sub-contract, sub-license or transfer this Agreement, whether in whole or in part, and/or any of your rights or obligations hereunder to any third party without the prior written consent of EastPro. EastPro reserves the right to assign, sub-contract, sub-license or transfer this Agreement and/or any of its rights or obligations hereunder to any third party.
9.4 Any notice required to be given to EastPro hereunder shall be sent by email to email@example.com. All notices to you shall be sent by email to your email address as set out in your user account. Notices shall be deemed to have been properly given on the next working day after sending the electronic mail to you with no bounce back.
9.5 EastPro shall not be liable to you for delays or failures in performance resulting from causes beyond EastPro’s reasonable control, including, but not limited to, acts of God, labor disputes or disturbances, power shortage or disruption, Internet interruption, system malfunction, riots, acts of war, governmental regulations, communication or utility failures, or casualties.
9.6 If any provision of these Terms and Conditions is held by any court or other competent authority to be void, invalid or unenforceable in whole or in part, such provision shall be valid and enforceable to the extent permitted by law or applicable rules, and the validity and enforceability of the other provisions in these Terms and Conditions shall not be affected thereby.
9.7 No failure or delay on the part of any parties to exercise any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by such party of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
9.8 These Terms and Conditions and any disputes arising hereunder or related hereto (whether for breach of contract, tortious conduct or otherwise) (“Disputes”) shall be governed by and construed in all respects in accordance with the laws of the Hong Kong Special Administrative Region (“Hong Kong”) without reference to its conflicts of law principles that would result in the application of the laws of another jurisdiction. Any Disputes shall first be submitted to mediation by an independent accredited mediator in accordance with the rules in effect at the time of mediation. If the Disputes cannot be resolved by mediation within three months, either party may commence legal proceedings and you hereby agree to submit to the exclusive jurisdiction of the Hong Kong courts.