This agreement (this "Agreement") shall be binding upon Fotolia LLC ("Fotolia") and any party (the "Downloader") who downloads a photograph, illustration, image or other pictorial or graphic work (the "Work") from the tenbyfotolia.com website. The Downloader acknowledges and agrees that he or she shall be bound by the terms and conditions of this Agreement and that this Agreement applies to each Work that the Downloader downloads.

The Downloader acknowledges and agrees that this Agreement does not effectuate any sale of the Work. Except for the rights specifically sublicensed under this Agreement, the Downloader shall not have any right, title or interest in or to, and in any event shall have no ownership of, the Work, including any copyright and other intellectual property rights.

Subject to the terms and conditions of this Agreement, Fotolia hereby grants to the Downloader a non-exclusive, perpetual, worldwide, non-transferable sublicense to use the Work. Other than as explicitly set forth in Section 3 below, the Work may be used for personal purposes only, and for no other purpose whatsoever. Other than as explicitly set forth in Section 3 below, the Downloader may not share the Work with, nor distribute it to, any third party; and such restriction applies also to any derivative work(s) of the original Work or any modification(s) made to the original Work.
Notwithstanding the above, if a Work is in violation of Fotolia’s Terms and Conditions of Use (as appearing on the Fotolia.com website), Fotolia reserves the right to instruct the Downloader to cease all use and possession of such Work, and the Downloader must promptly comply with such instructions.

For purposes of this Section 3, a “Commercial Element” is defined as any element contained in the Work which is NOT a Fotolia image. A list of Fotolia images is available on the tenbyfotolia.com website and, as well, the metadata of each Work identifies the Fotolia images by labeling such images with the word “Fotolia” and an image ID number. For clarity, the Fotolia images contained in the Work may be used for personal uses only, as set forth in Section 2 above.
In respect only of any element in the Work which is a ``Commercial Element`` of the Work, as defined above, the Downloader is hereby granted by Fotolia a non-exclusive, perpetual, worldwide, non-transferable sublicense, subject to the terms and conditions of this Agreement, to use, reproduce or display the Commercial Element an unlimited number of times in the authorized media solely for (a) personal or educational purposes and (b) in connection with the operation of a business. However, the Downloader shall have no right to sell or otherwise distribute the Commercial Element or any reproductions thereof to any third parties, whether alone or incorporated or together with or onto any item of merchandise or other work of authorship, in any media or format now or hereafter known. Notwithstanding the above, the Downloader shall have the right to sell or distribute the Commercial Element solely as incorporated onto an item of merchandise or other work of authorship if the Commercial Element has been modified to the extent that it is no longer substantially similar to the original Commercial Element (where such modification may be in the form of changes to the Commercial Element itself or the incorporation of the Commercial Element into other Non-Fotolia image(s), such as a collage), provided however that the modification must be sufficient enough to qualify as an original work of authorship. Furthermore, the Downloader shall have the right to sell or distribute the Commercial Element solely as incorporated onto an item of merchandise or other work of authorship if the primary value of the item being sold or distributed does not lie with the Commercial Element(s) themselves. For greater clarity, it is noted that reproducing the unmodified Commercial Element on mugs, t-shirts, posters, or other similar merchandise for resale is not permitted, as primary value would still lie in the Commercial Element itself. The Commercial Element may also be distributed free of charge in the form of advertising and promotional material, such as brochures, flyers, and the like. The Downloader shall have no right to grant further sublicenses. The Downloader shall have the right to transfer files containing the Commercial Element or permitted derivative works to employees, or have the Commercial Element reproduced by subcontractors, provided that such employees and subcontractors agree to abide by the restrictions of this agreement. In the normal course of workflow, the Downloader may also convey to a third party (such as a printer) temporary copies of the Commercial Element that are integral to the work product and without which the work product could not be completed. Third parties, employees and subcontractors shall have no further or additional rights to use the Commercial Element and cannot access or extract it from any other file provided. The Downloader may create a digital library, network configuration or similar arrangement to allow the Commercial Element to be viewed by their employees, partners and clients. Notwithstanding anything to the contrary contained in this Agreement, with respect to electronic formats, the Downloader's reproduction, distribution or display of the Commercial Element shall be limited to a resolution of 1,000 x 1,000 pixels in website uses (regardless of the resolution of the Commercial Element available for downloading from the tenbyfotolia.com website), and shall be limited to the resolution available for downloading from the tenbyfotolia.com website in other electronic uses. For clarification purposes but subject to the foregoing restrictions, it is intended that this sublicense shall permit use, reproduction and display of the Commercial Element in or for a business or commercial setting or circumstances, display in an office or other place of business, on advertising and promotion materials, and the like.
Notwithstanding anything to the contrary contained in this Agreement (including, without limitation, the restriction in clause (a) below), the Downloader may utilize all the rights under this Agreement in respect of the Commercial Element for itself, and additionally, on behalf of one (1) of its clients. As such, the Downloader may sublicense its rights and obligations hereunder as regards the Commercial Element to one (1) such client, and such client shall have all the rights, restrictions and obligations under this Agreement as regards the Commercial Element, but without the right to further sublicense these rights to additional parties. If the Downloader desires to use the Commercial Element on behalf of more than one (1) client, then the Downloader will have to download and pay for additional license(s) to the same Commercial Element.
Notwithstanding anything to the contrary contained in this Agreement, and without limitation to any aforementioned restrictions, the Downloader acknowledges, agrees and warrants that he or she shall not:
(a) sublicense, sell, assign, convey or transfer any of it's rights under this agreement. Sell, license or distribute the Commercial Element or any modified Commercial Element as stand-alone files or as part of an online database or any other database, or any derivative product containing the Commercial Element in such way that would allow a third party to download, extract or access the Image as a stand-alone file;
(b) share the Commercial Element with any other person or entity except as expressly permitted under this Agreement;
(c) post the Commercial Element online in downloadable format, post the Commercial Element on an electronic bulletin board, or enable the Commercial Element to be distributed via mobile telephone devices. Include the Commercial Element 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 design, presentation templates, electronic greeting cards, business cards or any other electronic or printed matter;
(d) download or store the Commercial Element on more than one computer at the same time, except that the Downloader may make a single backup copy to be stored on media separate from the single permitted computer;
(e) use, reproduce, distribute or display the Commercial Element in connection with design template applications intended for resale;
(f) use, reproduce, distribute or display the Commercial Element in connection with any goods or services intended for resale or distribution which primary value lies in the Commercial Element itself, including, without limitation, mugs, t-shirts, posters, greeting cards, posters or other merchandise, and any of the foregoing in "print on demand" or tangible or electronic formats, as applicable;
(g) use, reproduce, distribute or display the Commercial Element (including, without limitation, by itself or in combination with any other work of authorship) in any manner that is libelous or slanderous or otherwise defamatory, obscene or indecent;
(h) remove any notice of copyright, trademark or other intellectual property right, or other information that may appear on, embedded in, or in connection with the Commercial Element in its original downloaded form, it being understood that the Downloader shall reproduce any and all such notices in any backup copy of the file comprising the Commercial Element that the Downloader makes;
(i) incorporate the Commercial Element into a trademark or service mark;
(j) take any action in connection with the Commercial Element that violates any law, regulation or statute in an applicable jurisdiction;
(k) Use the Commercial Element in an editorial manner, without the following credit adjacent to the Image: "© [author's name] / Fotolia;
(l) take any action in connection with the Commercial Element that violates or infringes the intellectual property or other rights of any person or entity, including, without limitation, the moral rights of the creator of the Commercial Element and the rights of any person who, or any person whose property, appears in the Commercial Element; or
(m) take any action in connection with the Commercial Element that would reasonably imply that the creator of the Commercial Element, or the persons or property appearing in the Commercial Element (if any), endorse any political, economic or other opinion-based movements or parties.
(n) use the Commercial Element in a way that places any person in the photo in a bad light or depicts them in a way that they may find offensive - this includes, but is not limited to:
(1) the use of Images in pornography;
(2) tobacco ads;
(3) ads for adult entertainment clubs or similar venues, or for escort or similar services;
(4) political endorsements;
(5) uses that are defamatory, or contain otherwise unlawful, offensive or immoral content. For clarity, the Commercial Element is part of the Work, and other than as explicitly set forth in this Section 3, the Commercial Element shall be subject to the same terms and conditions in this Agreement which relate to the Work.

The Downloader shall pay to Fotolia a sublicense fee in accordance with the pricing and payment policies contained on the tenbyfotoila.com website.

The Downloader acknowledges and agrees that Fotolia and/or its licensor retains all rights, title and interest in and to the Work (except for the rights granted pursuant to this Agreement), and that neither title nor any ownership interest in or to the Work is transferred to the Downloader by virtue of this Agreement. Fotolia and/or its licensor (as applicable) shall also retain the right to use, reproduce or display the Work solely to demonstrate the Work as part of his or her professional portfolio. Without any limitation to any other rights that Fotolia may retain, Fotolia shall continue to have the right to use the Work for internal archival and reference purposes.

In addition to the representations and warranties made by the Downloader above, each of Fotolia and the Downloader hereby represent and warrant that it, or he or she, has the right to enter into this Agreement.

The Downloader agrees to indemnify, defend and hold harmless Fotolia 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 the Downloader's breach of any of his or her representations, warranties or obligations under this Agreement, and from any and all uses of the Work, 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 whether or not intentional. Fotolia shall have the right, in its sole discretion, to control the defense of any claim, action or matter subject to indemnification by the Downloader with counsel of its own choosing. The Downloader shall fully cooperate with Fotolia in the defense of any such claim, action or matter.

The Downloader agrees that neither Fotolia nor its affiliates, nor any of their respective officers, directors, employees, owners, agents, representatives, licensors and (sub)licensees (other than the Downloader), shall be liable for any damages, whether direct, incidental, indirect or consequential, arising from any use or non-use of the Work, even if such parties have been advised, or advised of the possibility, of such damages.
The Downloader acknowledges that Fotolia generally does not have releases for the trademarks, logos or other intellectual property of other parties that may be depicted in some Works. The procuring of such releases is the responsibility of the Downloader.
The Downloader acknowledges that Fotolia generally does not have releases from property owners, manufacturers or designers of commercial products such as (without limitation) automobiles, aircraft, packaged products, designer clothing, etc. that are depicted in some Works. It is generally not possible for any stock image library or artist to get blanket releases for such products, but they can often be obtained on a case-by-case basis. The procuring of such releases is the responsibility of the Downloader.
THE WORK IS PROVIDED "AS IS" AND, 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.

This Agreement shall continue in perpetuity unless terminated in accordance with this Section 9. Fotolia may at any time terminate this Agreement with respect to any Work in the event of any breach by the Downloader of any of his or her representations, warranties or obligations under this Agreement. The Downloader may at any time terminate this Agreement. Each of Fotolia and the Downloader shall notify the other in the event it, he or she terminates this Agreement. Fotolia shall also have the right, in its sole discretion, to deny the downloading of any Work from the tenbyfotolia.com website. Upon termination of a license for any particular Work, the Downloader shall immediately cease using such Work, destroy, or upon the request of Fotolia return the Work to Fotolia, delete or remove the Work from its premises, computer systems and storage (electronic and physical).

Upon the termination of this Agreement, the Downloader shall cease using the Work and destroy all copies of the Work, and all derivative works and related materials (if any), in his or her possession or control. At Fotolia's request, the Downloader shall certify in writing to such destruction of the Work, derivative works and/or related materials.
Termination of this Agreement shall not relieve the Downloader from any payment obligations that may have arisen prior to such termination. The provisions of Sections 1, 4, 5, 6, 7, 8, 10 and 11 shall survive the termination of this Agreement.

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 the Downloader and Fotolia 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 Fotolia and the Downloader under this Agreement is that of independent contractors. For clarification purposes, the parties are not joint ventures, partners, principal and agent, or employer and employee. Neither party shall have the power to bind or obligate the other in any manner.
The Downloader agrees that he or she 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 the license granted to him or her under this Agreement. No waiver on the part of Fotolia to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of Fotolia 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.
Except with respect to any trademark rights, all rights and licenses granted by Fotolia under or pursuant to this Agreement are for all purposes of Section 365(n) of Title 11 of the United States Code ("Title 11"), licenses of rights to "intellectual property" as defined in Title 11. Fotolia agrees that, in the event of commencement of bankruptcy proceedings by or against Fotolia under Title 11, the Downloader, as licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights under this Agreement (including the license granted under this Agreement) and all of its rights and elections under Title 11.
Fotolia shall have the right, in its sole discretion, to assign any or all of its rights or obligations under this Agreement. The Downloader shall have no right to assign any of his or her rights or obligations under this Agreement.
This Agreement shall inure to the benefit of, and be binding upon, Fotolia and the Downloader, and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer upon any person or entity, other than Fotolia and the Downloader, and their 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.