This Agreement governs your use of the website, including, without limitation, the uploading and downloading of photographs, illustrations, images or other pictorial or graphic works (“Works”) onto or from the website, access to web logs and forums, and any and all services offered on or through the website (the KHOWAB website, together with all of the foregoing uses and services, to be hereinafter referred to as the “Website”).1. Description of the Website and Membership
The Website provides, among other things, an online marketplace for uploading and downloading Works. Furthermore, the Website is divided generally into two sections: a public section and a private section. The public section offers to all visitors, among other things, general information about the Website, the ability to view Works on the Website, a search engine to search for Works on the Website, the ability to view and post comments on the official web log (the “Blog”), the ability to view and post comments on the personal web logs, if applicable (each, a “Member Blog”) of visitors who have registered as members of the Website (“Members”), and a process by which visitors can register to become Members, as further described below. The private section is only accessible by Members. The private section offers to Members (in addition to all services available in the public section) the ability to upload and download Works onto and from the Website in accordance with an applicable Upload Agreement or Download Agreement, the ability to post material or other content on personal Member Blogs if applicable, and the ability to access their accounts on the Website (“Membership Accounts”).
When a visitor to the Website registers to become a Member, he or she will select an available user name (“Membership Name”) and a corresponding user password (“Membership Password”) to create a unique, personal Membership Account. During registration, each Member shall be given the opportunity to accept a default country designation (and also language and currency designations pre-determined by KHOWAB to correspond to such country) based on the IP address from which such Member is accessing the Website. KHOWAB, in its sole discretion, may provide each Member with the opportunity to specify a country other than the default country (but the language and currency linked to such other country shall be pre-determined by KHOWAB to correspond to such other country). Once such information is entered during registration, such information cannot be revised later. The Member shall also be required to specify whether he or she is registering as an individual or on behalf of a company or entity (and, if so, the name of the company or entity).
A Member shall upload a Work through his or her Membership Account, and such Work shall be subject to an applicable Upload Agreement based on criteria specified by the Member as to exclusivity, permitted uses of the Work, and the like. The Member shall also enter keywords and a description of the Work so that the Work can be categorized and be searched by the Website's search engine. Applicable royalty rates for non-exclusive sublicenses granted to Members who download the Work shall be in accordance with the Website's Standard pricing and payment policies. Royalty rates for exclusive sublicenses granted to Members who download the Work shall be specified by the Member. KHOWAB may also, in its sole discretion, place certain types of limits on the uploading of Works.
A Member shall download a Work through his or her Membership Account, and such Work shall be subject to an applicable Download Agreement based on criteria specified by such Member, and also on criteria specified by the Member who uploaded the Work. A Member shall be able to download a Work for a particular use(s) only if he or she pays with the applicable number of Credits (as defined below) on the Website, and only if he or she agrees to the applicable Download Agreement for such Work and such use(s).
Your use of the Website constitutes your acknowledgment and acceptance of the terms and conditions of this Agreement, and you shall be bound by such terms and conditions. If you do not agree to be bound by the terms and conditions of this Agreement, do not use or access any portions of the Website or use any services offered on the Website.
KHOWAB shall have the right, in its sole discretion, to amend the terms and conditions of this Agreement, in whole or in part, at any time, and any such changes shall be effective immediately upon member notification and publication of such changes on the Website. Your continued use of the Website after the effectiveness of such changes and notice constitutes your acknowledgment and acceptance of the terms and conditions of this Agreement, as so amended. If you do not agree to be bound by the terms and conditions of this Agreement as so amended, do not use or access the Website.
If at any time the terms and conditions of this Agreement are no longer acceptable to you, whether or not as a result of an amendment by KHOWAB, do not use the Website.
Services on the Website are available only to, and may only be used by individuals who can enter into legally binding contracts under applicable law. Without limitation to the foregoing, services on the Website are not available to minors (e.g., persons under the age of eighteen) except under the supervision of an adult parent or guardian, and such parent or guardian shall be responsible for all uses of the Website. Your Membership Account on the Website may not be sold or otherwise transferred to another person or entity. If your use of the Website is on behalf of an entity, you represent and warrant that you have the authority to bind such entity to this Agreement.
You may only upload or download Works to or from the Website in accordance with the terms and conditions of this Agreement and of an applicable Upload Agreement or Download Agreement. You may not use, reproduce, distribute, display or create derivative works based on any Works that appear on the Website unless you enter into a Download Agreement, and you may do so only to the extent expressly permitted under the terms and conditions of an applicable Download Agreement.
You acknowledge and agree that no ownership of any Works can be transferred, and that no sale of any Works can be effectuated on or through the Website. Only the rights expressly sublicensed in an applicable Download Agreement are granted on or through the Website. You acknowledge and agree that KHOWAB or its licensors retain all ownership rights in and to the Works, and that such Works are covered and protected by copyright, trademark and other intellectual property rights of KHOWAB or its licensors.
You agree that you shall not use the Website in any manner that is not permitted by this Agreement or that violates any law, regulation or statute in an applicable jurisdiction.
You shall not upload or post onto the Website, or use the Website to transfer, any Work or other material or content that is covered or protected by copyright, trademark or other intellectual property rights unless you own or control such rights or have received all necessary consents. KHOWAB does not permit copyright infringing activities and infringement of intellectual property rights on its website, and KHOWAB will remove all Works if properly notified that such Work infringes on another's intellectual property rights. KHOWAB reserves the right to remove Works without prior notice. KHOWAB will terminate a user's access to its Website if the user is determined to be a repeat infringer. A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had a user submission removed from the Website more than twice.
You shall not upload or post onto the Website, or use the Website to transfer, any Work or other material or content that is libelous or slanderous or otherwise defamatory, obscene or indecent.
You shall not upload or post onto the Website, or use the Website to transfer, any Work or other material or content that contains or constitutes viruses, worms, Trojan horses or other code with malicious, disruptive and/or destructive features. You shall not to attempt to gain unauthorized access to any hardware or software systems or networks associated with the Website, or obtain any services or information not intentionally made available to you by KHOWAB on or through the Website. You shall not attempt to gain unauthorized access to the Membership Account of any other person or entity, or otherwise interfere with any other person's or entity's use, of the Website. You shall not use any false or misleading information (e.g., false or misleading names, email addresses or URLs) when using the Website, including, without limitation, with respect to the origin or source of any Work or other material or content that you upload or any identifying information for your Membership Account.
KHOWAB reserves the right to decide whether any Work is appropriate and complies with this Agreement for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material. KHOWAB may remove any such Work and/or terminate a user's access for uploading such material in violation of this Agreement at any time, without prior notice and at its sole discretion.
You may not use the Website in a fraudulent manner, or otherwise in a manner for which the Website is not reasonably intended to be used. By way of example, and without limiting the generality of the foregoing statement, you will not download works for the primary purpose of artificially inflating the ranking of a given contributor or for the primary purpose of artificially triggering payments to contributors. A contributor, or someone else on his/her behalf, may not download Works that such contributor has uploaded.
If you are a copyright owner or an agent thereof and believe that any user Work or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit KHOWAB to locate the material; iv. Information reasonably sufficient to permit KHOWAB to contact you, such as an address, telephone number, and, if available, an electronic mail address; v. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and vi. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
KHOWAB’s designated Copyright Agent to receive notifications of claimed infringement is: Copyright Agent, KHOWAB LLC, 41 East 11th Street, 11th Floor, New York, NY 10003; email: copyright@KHOWAB.com; facsimile: +1 (888) 674-2299. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to +1 (888) 674-2299. You acknowledge that if you fail to comply with all of the requirements of this Section 5, your DMCA notice may not be valid.
You acknowledge and agree that KHOWAB has no obligation to review any Works or other material or content uploaded or posted onto the Website, and shall have no responsibility for any such Works or other material or content. KHOWAB shall have the right, in its sole discretion, to accept or deny, delete, move or edit any Works or other material or content uploaded or posted onto the Website. If you upload or post any Works or other material or content onto the Website, or any Works or other material or content is uploaded or posted onto the Website using your Membership Name or otherwise through your Membership Account, you remain solely responsible for such Works or other material or content.
You acknowledge and agree that KHOWAB shall have no responsibility for any material or content on other websites to which you may hyperlink or otherwise access from the Website, including any web log, comments to any web log, or any forum on the Website. You acknowledge and agree that KHOWAB shall have no responsibility for any material or content on websites from which you may be hyperlinked or otherwise be directed to the Website.
KHOWAB reserves the right, in its sole discretion, to change or discontinue any or all of the services on the Website at any time. You acknowledge and agree that KHOWAB has no obligation to make, or continue to make, the Website or any particular portion or related service available to you (whether or not such unavailability is voluntary on the part of KHOWAB). KHOWAB reserves the right, in its sole discretion, to suspend or terminate your Membership Account at any time, including, without limitation, your Membership Name and Membership Password.
Transactions on the Website, including downloads of Works and the remuneration to an uploading Member in the event his or her Work is downloaded, shall be conducted using Website credits (“Credits”) in accordance with KHOWAB's Standard pricing and payment policies and subject to any amounts that may be owed to KHOWAB with respect to such transactions. In the event you are downloading a Work, the appropriate number of Credits shall be deducted from your Membership Account. In the event a Member downloads a Work that you have uploaded, the appropriate number of Credits will be deposited into your Membership Account after KHOWAB has received from the downloading Member non-opposable proof of payment. Credits exist in two forms: “Standard Credits” and “Offered Credits”.
You may acquire Standard Credits only by purchase, by using credit or charge cards, online payment accounts, wire transfers or such means as then permitted by KHOWAB, or by earning them if your Works are downloaded by other Members. If you purchase any Standard Credits by using a credit or charge card or an online payment account, you warrant that you are the cardholder or account holder and that the billing information provided is accurate, and you authorize KHOWAB to charge the designated credit or charge card or online payment account for the total amount of the purchase, including any sales or similar taxes. Standard credit purchases are non-refundable, only credits earned by selling photos and affiliation may be redeemed. You may only redeem your Standard Credits in the currency you indicated at the time you registered with the Website to create your Membership Account. KHOWAB, in its sole discretion, may grant you Offered Credits from time to time. Notwithstanding anything to the contrary contained in this Agreement, you may never redeem Offered Credits for cash, and can only use Offered Credits for transactions on the Website.
If you hold in your account both Standard Credits and Offered Credits, each charge of Credits against your account shall be charged equally from your Standard Credits and Offered Credits (i.e., one-half of the total charge from your Standard Credits and one-half of the total charge from your Offered Credits). If the amount of Standard Credits in your account is less than one-half of the total charge, the entirety of your Standard Credits shall be charged, and then the shortfall shall be charged against your Offered Credits (in addition to the one-half of the total charge that was already being charged against your Offered Credits). If the amount of Offered Credits in your account is less than one-half of the total charge, the entirety of your Offered Credits shall be charged, and then the shortfall shall be charged against your Standard Credits (in addition to the one-half of the total charge that was already being charged against your Standard Credits).
You acknowledge and agree that you are to keep confidential the Membership Name and Membership Account provided by KHOWAB to you, and the Membership Password selected by you and approved by KHOWAB for use with such Membership Name and Membership Account. Your Membership Name, Membership Account and Membership Password are personal to you and may not be shared with, or transferred to, any other person or entity.
You acknowledge and agree that you will be solely responsible for each and every use of your Membership Account, Membership Name and Corresponding Password, and that KHOWAB may rely on the use of your Membership Account, Membership Name or Membership Password as conclusive evidence that you have used the Website.
In addition to the representations and warranties you have made above, each of KHOWAB and you hereby represent and warrant that it, or he or she, has the right to enter into this Agreement.
You agree to indemnify, defend and hold harmless KHOWAB and its affiliates, and their respective officers, directors, employees, owners, agents, representatives, licensors and (sub)licensees (collectively, “Indemnitees”) from and against all claims, expenses (including attorney fees) or other liability arising from your breach of any of your representations, warranties or obligations under this Agreement, and from any and all uses by you of the Website (including any uses under your Membership Account or Membership Name, whether or not authorized by you), including, without limitation, any claims or actions based on infringement or violation of intellectual property rights, libel or slander or other defamation, right of privacy or “false light”, right of publicity or blurring or distortion or alteration of any Work or other material or content whether or not intentional. KHOWAB shall have the right, in its sole discretion, to control the defense of any claim, action or matter subject to indemnification by you with counsel of its own choosing. You shall fully cooperate with KHOWAB in the defense of any such claim, action or matter.
You agree that neither KHOWAB nor its affiliates, nor any of their respective officers, directors, employees, owners, agents, representatives, licensors and (sub)licensees (other than yourself, as applicable), shall be liable for any damages, whether direct, incidental, indirect or consequential, arising from any use by you of the Website, even if such parties have been advised, or advised of the possibility, of such damages.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FOR CLARIFICATION PURPOSES, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, KHOWAB MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE WWW.KHOWAB.COM WEBSITE OR THE SERVICES ON THE WWW.KHOWAB.COM WEBSITE, OR ANY WORKS OR OTHER MATERIALS OR CONTENT AVAILABLE ON THE WWW.KHOWAB.COM WEBSITE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, NON-INFRINGEMENT OF COPYRIGHT, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS, OR FREEDOM OF ANY SERVICES, OR ANY WORKS OR OTHER MATERIALS OR CONTENT, FROM VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE WITH MALICIOUS, DISRUPTIVE AND/OR DESTRUCTIVE FEATURES.
KHOWAB shall have no responsibility for any Works or other material or content uploaded or posted onto the Website, including, without limitation any material or content uploaded or posted by any Member onto the Website in any forum or as any comment to a web log.
This Agreement shall continue in perpetuity unless terminated in accordance with this Section 12. KHOWAB at any time may terminate this Agreement in its sole discretion, including, without limitation, for breach by you of any of your representations, warranties or obligations under this Agreement, or for inactivity by you with respect to use of the Website. You may at any time terminate this Agreement by logging into your Membership Account on the Website and then sending a termination request to KHOWAB. In the event termination is by KHOWAB, KHOWAB shall notify you of such termination. KHOWAB reserves the right, in its sole discretion, to terminate your Membership Account at any time, including, without limitation, deactivating your Membership Name and Membership Password.
Upon any termination of this Agreement:
a. your Membership Account shall be canceled and closed and your Membership Name and Membership Password shall be deactivated; b. all Works uploaded by you shall be removed from the Website; provided, however, that KHOWAB may continue to use the Work for internal archival and reference purposes; c. any and all Standard Credits shall be redeemable by you for cash, minus any transactional expense in accordance with KHOWAB's Standard pricing and payment policies and d. you shall forfeit all rights, title and interest in and to any and all Offered Credits.
Termination of this Agreement shall not relieve you from any payment obligations that may have arisen prior to such termination, or any other obligations pursuant to any other agreement that has not been specifically terminated, such as a Upload Agreement or Download Agreement. The provisions of Sections 8, 10, 11, 13 and 15 shall survive the termination of this Agreement.
KHOWAB reserves the right, in its sole discretion, to suspend your Membership Account at any time and for any length of time. In the event, and for so long as, KHOWAB suspends your Membership Account, you shall have no ability to upload any Works on the Website, but you may continue to access your Membership Account using your Membership Name and Membership Password and download Works and view and comment on the KHOWAB Blog and, if applicable, the Member Blogs of other Members, and post material or other content on your personal Member Blog if applicable. For clarification purposes, KHOWAB shall not remove any Works you have uploaded prior to suspension of your Membership Account and such Works shall continue to be available for download.
At KHOWAB, we strive to educate our members about achieving and maintaining high standards in the use of photographic images through good judgment and the application of relevant, recognized principles and standards. The purpose of this Section 14B is to outline KHOWAB’s expectations of its members regarding human rights, with a specific focus on children’s rights, in its business practices. This Section 14B is in addition to, and does not derogate from, any other policies or agreements binding on our members, including any provisions in this Agreement.
Photographers who provide KHOWAB with images have the responsibility to ensure that the highest standards are met. Accordingly, KHOWAB requires that a model release form be obtained by the photographer, as signed by a parent or guardian of any underage model appearing in an image, before submitting such image for uploading to KHOWAB.
KHOWAB has a zero-tolerance policy related to inappropriate images of children. In its role as a marketplace for the uploading and downloading of images, if KHOWAB becomes aware of any such inappropriate images of children it may take one or more of the of the following actions (in addition to any other actions it may deem appropriate):
• Alert the appropriate law enforcement authorities • Remove the images of concern from all KHOWAB libraries and servers • Suspend or delete the account of the providers and users of such photos To support its efforts, KHOWAB has established and maintains a mechanism by which users of its services can alert KHOWAB staff regarding any images of concern, including inappropriate images of children. To provide feedback or to alert KHOWAB of an image of concern, please contact us at report_abuse@KHOWAB.com.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to any conflict of laws principles. Any legal action, suit or proceeding arising out of or relating to this Agreement shall be instituted in a court of competent subject matter jurisdiction in the federal or state courts of the State of New York, and you and KHOWAB each submit to the personal jurisdiction of such court and waive any right each might otherwise have to claim lack of personal jurisdiction or inconvenience of forum.
The relationship between KHOWAB and you under this Agreement is that of independent contractors. For clarification purposes, the parties are not joint venturers, partners, principal and agent, or employer and employee. Neither party shall have the power to bind or obligate the other in any manner. You agree that you shall be responsible for all use, sales, value-added and similar taxes and duties imposed by any governing authority in any jurisdiction in connection with your use of the Website.
No waiver on the part of KHOWAB to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of KHOWAB to exercise any such power, right, privilege or remedy, shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. KHOWAB shall have the right, in its sole discretion, to assign any or all of its rights or obligations under this Agreement. You shall have no right to assign any of your rights or obligations under this Agreement.
This Agreement shall be inure to the benefit of, and be binding upon, KHOWAB and you, and its and your respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer upon any person or entity, other than KHOWAB and you, and its and your respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
Whenever the context so requires, the singular number shall include the plural and vice versa, and the masculine, feminine and neutral genders shall include each other. If any term or provision of this Agreement is invalid, illegal or unenforceable, all other terms and conditions of this Agreement shall nevertheless remain in full force and effect. The underlined headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.