General "Terms and Conditions of Use" or "Agreement" *
1- Introduction These Terms and Conditions serve as a non-transferable contract (also referred to below as an "Agreement") between you the licensee (the person viewing this website and using any of its content/Image(s)) and Catherine Babault Photography the exclusive authorized agent for the creators and copyright owners of the Image(s) on this website. These Terms and Conditions are superseding any other general Terms and Conditions of Use previously printed and/or provided to any Client. The Terms and Conditions also prevail over any written terms and conditions of the Client.
3- Definitions: (3.1) "Image" means a photograph, picture, graphic work, montage, illustration, drawing as well as any Image on a computer disk, or on magnetic tape, or transmitted electronically in digital form, or stored in a computer-based retrieval system, or any other item that may be offered by us to you for the purpose of Reproduction. (3.2) "Creator" refers to the photographer, artist or any other party (or parties) responsible for producing the Image(s) on this website. "Client", "You and "Your" refer to the individual viewing Catherine Babault Photography Library website. All three terms also refer to the individual downloading Image(s) from this website. In addition, all three terms refer to the recipient/licensee of the Image(s) and its/your representatives. The terms "Us" and "Our" refer to Catherine Babault Photography, its licensors and its content providers. (3.3) "Digital" means a digital format such as a floppy disk, portable memory/storage, fixed hard disk, compact disk ("CD"), DVD, e-mail, ISDN, FTP server, etc. containing Image(s) that have been converted into digital files and provided to you by us subject to these Terms and Conditions. (3.4) "Reproduction" means any form of copying, displaying or publication of the whole or part of any Image made available to you by us, whether such Image is altered or manipulated in any way or not by you, and whether reproduced by printing, photography, photocopying, scanning or slide projection by electronic, digital or mechanical means. "Reproduction" also means the downloading and/or storage of an Image by any means, including digitally. "Reproduction" is also understood by you and us to include the use, either in whole or in part, of any Image for producing a comp, layout or presentation, including the display of an Image on an Internet and/or Intranet website. (3.5) "Text" means any words, information or data, keywords, caption, extended caption or any other words in written or digitally stored or transmitted format that we may offer either for the purpose of Reproduction or for the purpose of providing specific information about an Image. (3.6) "Non-transferable" means that the work you produce using our Image(s) must be for your own use, or for the use of your direct employer, client, or customer, i.e.: the end-user of your work. You may not sell, rent, loan, give, sub-licence, or otherwise transfer to anyone our Image(s) or the right to use the Image(s) and nothing you produce shall grant or purport to grant to any third party a right to use or reproduce the Image(s). You agree to take all commercially reasonable steps to prevent third parties from reproducing or distributing the Image(s), including affixing a copyright/credit line. Image(s) may not be passed from one client to another, even within the same organization, except by prior explicit written agreement with Catherine Babault Photography. (3.7) "Licence" means any type licence available through Catherine Babault Photography. Catherine Babault Photography licences its image(s) within several licensing agreement, including but not limited to Rights Protected Licensing. The Client is responsible to read and comply with every aspect of the licence applicable to the reproduction of the Image(s). If you are unsure about the usage rights under these terms and conditions, it is the Client’s responsibility to contact our office.
4. Prohibitions You may not: a) alter or merge, in whole or in part, the Digital Medium or any Image(s) so as to create a derivative work ; b) reverse engineer, disassemble the Image(s) or any software contained on or in the Digital Medium, subject to applicable law; c) use the Image(s) in any way that might be deemed defamatory, libellous, pornographic, or obscene; d) store or transmit the Image(s) electronically or digitally, except as provided above in these Terms and Conditions. However the licensee may store images in a digital library, network configuration or similar arrangement to allow the licenced images to be viewed by employees, partners and clients of licensee, so long as there are no more than ten (10) Users. licensee must purchase additional seat licences if there are more than ten (10) users before such additional use begins. e) copy or reproduce any CD, DVD that we may provide to you, nor the Image(s) it contains, or the materials that accompany it, except as specified in these Terms and Conditions; f) transfer or assign any rights to the Digital Medium or the Image(s).
5- Permissions and Releases (5.1) Catherine Babault Photography gives no rights or warranties with regards to the use of names, trademarks, logotypes, registered or copyrighted designs or works of art depicted in any Image, and you must satisfy yourself that all necessary rights, model releases, permissions or consents which may be required for Reproduction are obtained. (5.2) No valid model or other releases exist for any Image on our website unless the existence of such releases is specified in writing by us. You agree that you will obtain from the applicable right holder any other rights necessary for the intended use of any Image, including without limiting the generality of the foregoing, any personality or publicity rights. Errors might occur on the website, and therefore, you will need written confirmation for the existence of such model release. You agree to indemnify and hold the Image Creators and Catherine Babault Photography harmless against all claims arising out of the use of any Image(s) where the existence of such release(s) has not been specified in writing by us. In the event that Licensor(s) erroneously stated to you in writing that a release or consent existed as to any Image(s), the limit of Licensors' liability to you, shall be the sum invoiced and paid for the use of the particular Image(s) involved. (5.3) Disclaimer - The information provided on the site regarding model and property releases is intended solely for general informational use. It should NOT be taken as legal advice or as an answer to specific questions you may have in regards to model or property releases. It is your responsibility to ensure that you have the correct model or property releases for your intended use and that you comply with the relevant local laws. You are advised to seek legal advice if you have specific questions regarding releases. If you choose to download an image with no model or property release for any other usage than editorial, it is your responsibility to ask a legal professional about your specific use to be sure. The "Text" provided on the site is intended solely for general informational use. It should NOT be taken as fact or as an answer to specific questions you may have with regards to identification. It is your responsibility to confirm the identification of the subject/accuracy of the caption of any image.
6- Digital Files - Cancellation and Refund Policy (6.1) If you choose to receive high-resolution Image(s) in a digital format for Reproduction it shall be presumed by us that the Image(s) we supply to you on CD, DVD, or downloaded by you from this website or via our FTP servers, have been received in good, useable condition unless you notify us otherwise within seven (7) business days of receipt of the Image(s) files. (6.2) Downloading again and cancellation policy Download failure: If your image download fails for some reason, please do not re-purchase that image. All purchased images are available to you for downloading again. If you have continuing problems, please contact Catherine Babault Photography. Replacement due to quality problems To request a replacement (straight image swap), please contact Catherine Babault Photography. We will look at each case individually. Cancellation policy Rights-managed images - You may cancel the image licence within seven working days from the date of the invoice without charge. If you cancel less than 30 working days after the invoice date, a cancellation fee of fifty (50%) percent of the invoice will be charged. After thirty working days, no cancellations will be accepted and the full amount of the invoice must be paid. However, if an image has been printed/uploaded and is in use, then no refund can be given at all. However, all online purchases paid via credit/debit card/via our payment gateway provider/via PayPal are final and no refund can be given. Cancelling the licence revokes any right to use an image. (6.3) Licensor(s) warrant the Image(s) and disc to be free from defects for 60 days from delivery. The sole and exclusive remedy for a breach of the foregoing warranty is the replacement of the Image or disc or refund of the purchase price, at Licensor(s)' option. LICENSOR(S) MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER LICENSOR(S) NOR THEIR LICENSORS SHALL BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR OTHER DAMAGES ARISING OUT OF THIS licence OR OTHERWISE.
7- Analogue Files (7.1) By accepting delivery of our Image(s) in a form of print, you implicitly agree to our Terms and Conditions in their entirety. If this is not acceptable, you must phone us immediately to discuss the matter or return our Image(s), unused at once. Unless Image(s) are sent back by return as Special Delivery or by courier, it is understood that you are willing to pay at current Catherine Babault Photography’s rates for the use of Image(s); a Service Fee if no use is made; and a Holding Fee if Image(s) are held beyond the agreed period. (7.2) Return of Image(s): Any Image supplied by Catherine Babault Photography is on loan and must be returned as soon as it is no longer required. All Image(s) must be returned by the due date on the delivery note. After that date, unless an extension has been granted, you are liable for a holding fee. This fee will be charged per Image, per week at the current rate. If overdue Image(s) are not returned within a reasonable period, Catherine Babault Photography reserves the right to invoice for loss. (7.3) Responsibility for Image(s): Image(s) collected by courier, or by your representative, are your responsibility as soon as they leave Catherine Babault Photography’s office. You are hence forth responsible for their safe keeping, for their return in good condition, for informing us of their use and for arranging payment. This responsibility ends when both Image(s) and payment have been received by Catherine Babault Photography. (7.4) Damage and loss: If you receive Image(s) in a damaged condition, or there is any discrepancy between the number of Image(s) received and the number registered on the delivery note, you must inform Catherine Babault Photography immediately. Unless you do so within 3 days, we must assume Image(s) have been lost or damaged while in your possession and will invoice accordingly. You should inform Catherine Babault Photography of any misuse or damage to Image(s) whilst in your possession.
8- Copyright Notice and Publication (8.1) Our Image(s) are protected by copyright law under the Copyright Act of Canada and under the Berne Convention. (8.2) If our Image(s) are used by you in a print publication you agree to send to us two free samples of the pages containing our Image(s) within thirty days of publication. In other media, alternative evidence of use must be provided to us if requested.
9- Rates, payment and right to use (9.1) Rates: It is your responsibility to be aware of our current rates, which are updated on 1st January each year. These new rates automatically invalidate all previous rates information. Payment in advance: In some cases, when a fee is agreed off-line, Catherine Babault Photography may request payment, or part payment, in advance. Catherine Babault Photography current rates apply unless there is written agreement to the contrary. If you wish to negotiate a special rate for the right to use a picture, you should do so in advance. (9.2) Expenses: any expenses occurred by Catherine Babault Photography while on assignment on behalf of the Client will always be paid in full by the Client within 30 days. In case of any event or dispute arises, and for whatsoever reasons, including but not limited to accident, loss of films, fire, storm, flood, act of God, war, civil disturbance, loss of materials, photographers' expenses must be honoured in full. (9.3) You only have the right to reproduce our Image(s) when our Invoice/Copyright licence is paid in full. Therefore, you agree to pay our Invoice/Copyright licence within 30 days. (9.4) Right to use: any Reproduction by you before the full payment of the relevant Invoice/Copyright licence constitutes an infringement of copyright and a breach of this Agreement, thus entitling us to rescind the Invoice/Copyright licence and rendering you liable for the payment of a penalty fee and damages. Any image(s) copyrighted to Catherine Babault Photography that are used without our permission or any grant of a licence to use will be subject to a penalty fee. The penalty fee for infringement of copyright is a minimum of 500% of the standard fee applicable for the unauthorised use. Additionally Catherine Babault Photography reserves the right to take legal action for copyright infringement for additional damages. The borrowing, download, order, reception or purchase of image(s) from Catherine Babault Photography does not confer the right to use the image(s). This right is conferred only on FULL payment of our invoice. NO RIGHTS OF REPRODUCTION ARE GRANTED UNTIL PAYMENT IS RECEIVED BY Catherine Babault Photography. (9.5) If payment is not made by you in accordance with the above, then we may revoke the applicable Invoice/Copyright licence and recover damages and charge interest to you on the overdue amount at 5% above the official dealing rate of The Bank of Canada per annum on the outstanding balance. The client will pay Catherine Babault Photography any expenses incurred by Catherine Babault Photography in connection with the recovery of monies outstanding (including legal costs on an indemnity basis). (9.6) We calculate the fee specified in our Invoice/Copyright Licence by relying in good faith on the information you provide to us for the intended use and reproduction specified in that Licence. As it is difficult to quantify the loss or damage incurred if you use the Image(s) other than in accordance with this Agreement, including but not limited to the number of uses, the publication utilised, or the size of reproduction, we shall have the option to forego our right to sue for copyright infringement and breach of contract if you pay, as liquidated damages, a sum equal to four (4) times the normal fee which we would have charged for such use, payable within ten (10) days. If payment has not been received within ten days, we shall have the right to sue you for copyright infringement and breach of contract. (9.7) All sums required to be paid to us under these Terms and Conditions are expressed net of Value Added Tax. (9.8) It is your responsibility to inform Catherine Babault Photography when and how a picture is to be used. When doing so, it is essential to provide us with the identifying reference number of each picture. Payment need not be made until the time of use but is then due immediately. (9.9) Retention of Image(s): you may store copies of high resolution Image(s) provided on CD, DVD for the duration of the project for which the Image(s) have been purchased. This does not entitle you to any usage or reproduction rights beyond those explicitly agreed by Catherine Babault Photography. Catherine Babault Photography Image(s) are tagged and unauthorised use can be detected electronically.
10- Termination In the event of breach of copyright by the client or non-respect of any part of this Terms and Conditions of Use, Catherine Babault Photography reserves the rights to terminate this Agreement. In the event that we terminate this Agreement you must immediately (a) stop using our Image(s) in whatsoever form including but not limited to analogue or digital files and (b) return immediately all Image(s) provided in analogue form, (c) delete the Image(s) and all copies of them from all of your electronic and/or magnetic media and destroy all other copies of the Image(s) within your possession or control, or, upon request of Catherine Babault Photography, return all such copies to us.
11- Warranty and Indemnification (11.1) You shall indemnify and hold us harmless against all claims, loss, damage, proceedings or costs with respect to Image(s) that have been reproduced without effective rights, model releases, permissions or consents. (11.2) You agree to indemnify and hold harmless Catherine Babault Photography, its licensors and content providers against all claims, demands, costs, damages and related expenses, whether foreseeable or not, arising directly or indirectly in respect of any claims that the Reproduction of any Image provided to you by us infringes the intellectual property rights of a third party. For the purposes of this clause, the term "Intellectual Property Rights" shall include: copyright, database right, patents, registered designs, trademarks and service marks (whether registered or not), design right, and all similar property rights including those subsisting in any part of the world in drawings, software inventions and confidential information. (11.3) Pornographic use, use that would be defamatory or libellous or use which is otherwise unlawful is prohibited. If the Image(s) featuring a person is used in a manner that implies endorsement, use of, or a connection to a product or service by that model, or a potentially unflattering or controversial subject, you must print a statement that indicates that the person is a model and is used for illustrative purposes only. You agree that you will not use or permit the use of our Image(s) to defame any person or violate any person's right of privacy or publicity, for any obscene or indecent purpose, or in any other way which is illegal or unlawful. You further agree not to use or permit the use of our Image(s) as a trade or service mark, or claim any proprietary rights of any sort in the Image(s) or any part thereof. You agree to indemnify and hold us harmless against any claim, loss, damage or liability of any kind (including reasonable legal fees and expenses) arising from any use of our Image(s) other than in accordance with the terms of this Agreement. (11.4) Licensor(s) warrants the Image(s) and disc to be free from defects for 90 days from delivery. The sole and exclusive remedy for a breach of the foregoing warranty is the replacement of the Image(s) or disc or refund of the purchase price, at Licensor(s)' option. NEITHER LICENSOR(S) NOR THEIR LICENSORS SHALL BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR OTHER DAMAGES ARISING OUT OF THIS licence OR OTHERWISE.
12- Disclaimers THIS WEBSITE AND ITS CONTENT ARE PROVIDED "AS IS" AND CATHERINE BABAULT PHOTOGRAPHY EXCLUDES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. THE FUNCTIONS EMBODIED ON, OR IN THE MATERIALS OF, THIS WEBSITE ARE NOT WARRANTED TO BE UNINTERRUPTED OR ERROR-FREE. YOU, NOT CATHERINE BABAULT PHOTOGRAPHY, ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION DUE TO YOUR USE OF THIS WEBSITE. (12.1) Except as specifically stated in these Terms and Conditions of Use, or elsewhere on this website, or as otherwise required by applicable law, neither Catherine Babault Photography nor its licensors, content providers, contributors, affiliates or other representatives will be liable for damages of any kind (including, without limitation, lost profits, direct, indirect, compensatory, consequential, exemplary, special, incidental, or punitive damages) arising out of your use of, your inability to use, or the performance of this website or the Content whether or not we have been advised of the possibility of such damages. (12.2) In no event will Catherine Babault Photography be liable for any damages including, without limitation, indirect or consequential damages, or any damages whatsoever arising from use or loss of use, data or profits, whether in action of contract, negligence or other action, arising out of or in connection with these Terms and Conditions, (12.3) Catherine Babault Photography uses reasonable efforts to ensure the accuracy, correctness and reliability of the Content, but we make no representations or warranties as to the Content's accuracy, correctness or reliability.
13- Law & Disputes (13.1) This Agreement shall be interpreted, construed and governed by the laws of Canada without reference to its laws relating to conflicts of law and not including the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods. Venue for all disputes arising under this Agreement shall lie exclusively in the Canadian Courts and each party agrees not to contest the personal jurisdiction of these courts. Notwithstanding the foregoing, however, Catherine Babault Photography shall have the right to commence and prosecute any legal or equitable action or proceeding before any non-Canadian court of competent jurisdiction to obtain injunctive or other relief in the event that, in the opinion of View, such action is necessary or desirable. (13.2) No action of Catherine Babault Photography, other than an express written waiver or amendment, may be construed as a waiver or amendment of any of these Terms and Conditions of Use. Should any clause of these Terms and Conditions of Use be found unenforceable, wherever possible this will not affect any other clause and each will remain in full force and effect.