AFLO, END USER LICENSE AGREEMENT (EULA)
Last updated: March 20th, 2021
This is an integral part of the license agreement between you, the user (the Licensee) and Aflo (the Licensor) that explains how you can use photos, illustrations, vectors, and videos (individually and collectively, "content") that you license from Aflo. By obtaining content from Aflo, you accept the terms of this agreement.
What types of licenses does Aflo offer?
Aflo offers two types of license: royalty-free ("RF") and rights-managed ("RM"). Royalty-free means that the license fee is paid once and there is no need to pay additional royalties if the content is re-used. Royalty-free content is licensed for worldwide, unlimited, perpetual use, and pricing is based on the file size. Rights-managed is licensed for specific types of use, and pricing is based on factors such as size, placement, duration of use, and geographic distribution.
Comp license
You are welcome to use content free for test or sample (comp) use, for up to 30 days following download or receiving the item. However, unless a license is purchased, content cannot be used in any final materials or any publicly available materials. No other rights or warranties are granted for comp use.
How can I use licensed content?
You may use licensed content in any way consistent with the rights granted below and not restricted (see Restricted Uses below). Subject to those restrictions and the rest of the terms of this agreement, the rights granted to you by Aflo are:
Royalty-Free: Perpetual, meaning there is no expiration or end date on your rights to use the content. Worldwide, meaning content can be used in any geographic territory. Unlimited, meaning content can be used an unlimited number of times. Any and all media, meaning content can be used in print, in digital or in any other medium or format. Non-Exclusive, meaning that you do not have exclusive rights to use the content. Aflo can license the same content to other customers. If you would like exclusive rights to use royalty-free content, please contact Aflo to discuss a buy-out.
Rights-Managed: to the specific use, medium, period of time, print run, placement, size of content, and territory selected, and any other restrictions that accompany the content on the Aflo’s website (or any other method of content delivery) or in an order confirmation or invoice. Non-Exclusive, meaning that, unless otherwise indicated on the website, your invoice, sales order or separate agreement, you do not have exclusive rights to use the content. Aflo can license the same content to other customers. Exclusive licenses may be available for rights-managed content. Please contact Aflo to discuss.
For purposes of this agreement, "use" means "to copy, reproduce, modify, edit, synchronize, perform, display, broadcast, publish, or otherwise make use of". Please make sure you read the Restricted Uses section below for exceptions.
Restricted Uses
1. No Unlawful Use.
You may not use content in a pornographic, defamatory or other unlawful manner, or in violation of any applicable regulations (including for sports content, any restrictions or credentials issued by a sports league or governing body) or industry codes.
2. No Commercial Use of Editorial Content.
Unless additional rights are specified on the Aflo invoice or sales order, or granted pursuant to a separate license agreement, you may not use content marked “editorial” for any commercial, promotional, advertorial, endorsement, advertising or merchandising purpose. This type of content is not model or property released and is intended to be used only in connection with events or topics that are newsworthy or of general public interest.
3. No Alteration of Editorial Content.
Content marked “editorial” may be cropped or otherwise edited for technical quality, provided that the editorial integrity of the content is not compromised, but you may not otherwise alter the content.
4. No Standalone File Use.
You may not use content in any way that allows others to download, extract, or redistribute content as a standalone file (meaning just the content file itself, separate from the project or end use).
5. No Sensitive Use Without Disclaimer.
If you use content that features models or property in connection with a subject that would be unflattering or unduly controversial to a reasonable person (for example, sexually transmitted diseases), you must indicate: (1) that the content is being used for illustrative purposes only, and (2) any person depicted in the content is a model. For example, you could say: “Stock photo. Posed by model.” No disclaimer is required for content marked “editorial” that is used in a non-misleading editorial manner.
6. No False Representation of Authorship.
You may not falsely represent that you are the original creator of a work that is made up largely of licensed content. For instance, you cannot create artwork based solely on licensed content and claim that you are the author.
7. Rights Managed Exclusivity.
Except in respect of the exclusions set out below or where you are otherwise advised on the website, your invoice, sales order or other license agreement, the license for a commercial use of Rights Managed content shall be exclusive to you only for the terms (specific to your use, your industry and your duration) agreed between you and Aflo. Please note that there may be other content that is similar to the content that you have licensed. Nothing in this Agreement prohibits Aflo from licensing such similar content to other customers. Exclusions include: all editorial uses (including but not limited to television and film use, documentary use, news programming, music video, advertorial use, all advertising related to television or film, book cover, magazine cover), wall décor and display, theatrical display, museum display, calendars, promotional products (e.g., apparel, gift wrap, mugs), posters and stationery (including postcards).
8. No Subscription Abuse.
You may not stockpile, download or otherwise store content not used in a project or end use within 30 days after the end of your subscription for future use. However, imagery licensed in an editorial publication can remain in the archive, up to 5 years for web usage.
Restricted Uses - unless an additional license is purchased
The following are prohibited without the prior written consent of Aflo and payment of an additional license fee:
1. No 'On Demand' Products.
Unless you purchase a custom license, you may not use content in connection with "on demand" products (e.g., products in which licensed content is selected by a third party for customization of such product on a made-to-order basis), including, without limitation, postcards, mugs, t-shirts, calendars, posters, screensavers or wallpapers on mobile telephones, or similar items.
2. No Electronic Templates.
Unless you purchase a custom license, you may not use content in electronic or digital templates intended for resale or other distribution (for example, website templates, business card templates, electronic greeting card templates, and brochure design templates).
Who, besides me, can use the licensed content?
The rights granted to you are non-transferable and non-sublicensable, meaning that you cannot transfer or sublicense them to anyone else. There are two exceptions:
1. Employer or client.
If you are purchasing on behalf of your employer or client, then your employer or client can use the content. In that case, you represent and warrant that you have full legal authority to bind your employer or client to the terms of this agreement. If you do not have that authority, then your employer or client may not use the content. The rights purchased may only belong to you or your employer/client, depending on who is named as the “Licensee” at the time of purchase. In other words, if you purchase royalty-free content, only one of you (and not both) may re-use that content for multiple projects.
(IMPORTANT TO SPECIFY LICENSEE (END USER) AT TIME OF PURCHASE FOR COMPLIANCE)
Sharing and Storage Restrictions for RF Content. Please note that sharing and storage restrictions apply for royalty-free content. Up to 10 individuals (total, not at any given time) may use an item of content, and all individuals must be from the same legal entity, however you may make RF content available for viewing by any of your employees, clients and subcontractors. There are no restrictions on where each individual may store the content. The raw file of content may not be provided to anyone outside of your legal entity other than subcontractors. If you require content to be available to more than 10 users, please contact Aflo to purchase rights for additional users. If you are downloading content under a committed solution (i.e., Premium Access), unless renewed prior to the end of your term, all sharing rights terminate at the end of the term and all content must be removed from your shared server, digital asset management system or other storage system and stored only on individual devices.
2. Subcontractors.
You may allow subcontractors (for example, your printer or mailing house) or distributors to use content in any production or distribution process related to your final project or end use. These subcontractors and distributors must agree to be bound by the terms of this agreement and may not use the content for any other purpose.
User Accounts
You will be responsible for tracking all activity for each user account, and you agree to: (a) maintain the security of all passwords and usernames; (b) notify Aflo immediately of any unauthorized use or other breach of security; and (c) accept all responsibility for activity that occurs under each user account. Aflo reserves the right to monitor downloads and user activity to ensure compliance with the terms of this agreement. If Aflo determines that you are in breach of this or any other term of this agreement, it may suspend access to your account and seek further legal remedies.
Intellectual Property Rights
Who owns the content?
All of the licensed content is owned by either Aflo or content suppliers. All rights not expressly granted in this agreement are reserved by Aflo and the content suppliers. You may not assert any right to revenue from a collecting society, social media website, content sharing platform or any other third party in respect of photocopying, digital copying, sharing, distribution or other secondary uses of the licensed content.
Attribution
Do I need to include a photo credit?
You do not need to include a photo credit for commercial use, but if you are using content for editorial purposes, you must include a credit adjacent to the content or in production credits. The credit should be in the following form or as otherwise stipulated in the caption information accompanying the content on the Content providers website: “[Photographer Name]/[Content provider name]/Aflo”.
Do I need to include a video credit?
If licensed content is used in an audio/visual production where credits are accorded to other providers of licensed material, you must include a credit in comparable size and placement. The credit should be in the following form or as otherwise stipulated in the caption information accompanying the content on the content providers website: “[Video] [Imagery] supplied by [Artist Name]/[Content providers name]/Aflo”
Can I use the name or logo of Aflo or the Content provider?
You may use the name of Aflo and/or its content suppliers as necessary to give attribution, but you may not otherwise use their names, logos, or trademarks without prior written approval.
Termination/Cancellation/Withdrawal
Termination
Aflo may terminate this agreement at any time if you breach any of the terms of this or any other agreement with Aflo, in which case you must immediately: cease using the content; delete or destroy any copies; and, if requested, confirm to Aflo in writing that you have complied with these requirements.
Social Media Termination
If you use the content on a social media platform or other third party website and the platform or website uses (or announces that it plans to use) the content for its own purpose or in a way that is contrary to this agreement, the rights granted for such use shall immediately terminate, and in that event, upon Aflo’ request, you agree to remove any content from such platform or website.
Refunds/Cancellation
All requests for refunds/cancellations must be made in writing. Provided that the request is made within 7 days and the licensed content has not been used, Aflo may cancel the relevant order and issue a full refund to your account or credit card. No credits or refunds are available for cancellation requests received more than 7 days from your receipt of content, or for research, lab, service or subscription fees, all of which are non-refundable. In the event of cancellation, your rights to use the content terminate, and you must delete or destroy any copies of the content.
Content Withdrawal
Aflo may discontinue licensing any content at any time in its sole discretion. Upon notice from Aflo, or upon your knowledge, that any content may be subject to a claim of infringement of a third party’s right for which Aflo may be liable, Aflo may require you to immediately, and at your own expense: cease using the content, delete or destroy any copies; and ensure that your clients, distributors and/or employer do likewise. Aflo will provide you with replacement content (determined by Aflo in its reasonable commercial judgment) free of charge, subject to the other terms of this agreement.
Representations and Warranties
Aflo makes the following representations and warranties:
1. Warranty of Non-Infringement.
For all licensed content, Aflo warrants that your use of such content in accordance with this agreement and in the form delivered by Aflo (that is, excluding any modifications, overlays or re-focusing done by you) will not infringe on any copyrights or moral rights of the content owner/creator.
2. Additional Warranties for Certain Content.
1. Royalty-free: For licensed royalty-free content (excluding content marked “editorial”), Aflo warrants that your use of such content in accordance with this agreement and in the form delivered by Aflo (that is, excluding any modifications, overlays or re-focusing done by you) will not infringe on any trademark or other intellectual property right, and will not violate any right of privacy or right of publicity.
2. Rights-managed: For licensed rights-managed content where Aflo specifically notifies you that a model and/or property release has been obtained, Aflo warrants that your use of such content in accordance with this agreement and in the form delivered by Aflo (that is, excluding any modifications, overlays or re-focusing done by you) will not, where a property release has been obtained, infringe on any trademark or other intellectual property right and/or will not, where a model release has been obtained, violate any right of privacy or right of publicity.
3. Warranty Disclaimer.
Unless specifically warranted above, Aflo does not grant any right or make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs, works of art or architecture depicted or contained in the content. In such cases, you are solely responsible for determining whether release(s) is/are required in connection with your proposed use of the content, and you are solely responsible for obtaining such release(s). You acknowledge that no releases are generally obtained for content identified as “editorial”, and that some jurisdictions provide legal protection against a person’s image, likeness or property being used for commercial purposes when they have not provided a release. You are also solely responsible for payment of any amounts that may be due under, and compliance with any other terms of, any applicable collective bargaining agreements as a result of your use of the licensed content.
4. Caption/Metadata Disclaimer.
While content providers from Aflo have made reasonable efforts to correctly categorize, keyword, caption and title the content, Aflo does not warrant the accuracy of such information, or of any metadata provided with the content.
5. RM Exclusivity Disclaimer.
While content providers from Aflo have made reasonable efforts to correctly categorize and record grants of exclusivity for commercial use of RM content, Aflo does not warrant or guarantee exclusivity in respect to editorial use of RM content. All such grants of commercial exclusivity do not preclude prior, concurrent, or subsequent licenses granted for editorial usage of the same RM content.
6. No Other Warranties.
Except as provided in this section above, the content is provided “as is” without representation, warranty or condition of any kind, either express or implied, including, but not limited to, implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. Aflo does not represent or warrant that its content providers websites or the content on the content providers websites, will meet your requirements or that use of the content or websites will be uninterrupted or error free.
Indemnification/Limitation of Liability
Indemnification of Aflo by you.
You agree to defend, indemnify and hold harmless Aflo and its parent, subsidiaries, affiliates, and content suppliers, and each of their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside legal fees) arising out of or in connection with (i) your use of any content outside the scope of this agreement; (ii) any breach or alleged breach by you (or anyone acting on your behalf) of any of the terms of this or any other agreement with Aflo; and (iii) your failure to obtain any required release for your use of content.
Indemnification of you by Aflo.
Provided that you are not in breach of this or any other agreement with Aflo, and as your sole and exclusive remedy for any breach of the warranties set forth in Section 8 above, Aflo agrees, subject to the terms of this Section 9, to defend, indemnify and hold harmless you, your corporate parent, subsidiaries and affiliates, and each of your respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside legal fees) arising out of or in connection with any breach or alleged breach by Aflo of its warranties in Section 8 above. This indemnification does not apply to the extent any damages, costs or losses arise out of or are a result of modifications made by you to the content or the context in which the content is used by you. This indemnification also does not apply to your continued use of content following notice from Aflo, or upon your knowledge, that the content is subject to a claim of infringement of a third party’s right.
The party seeking indemnification must promptly notify in writing the other party about the claim. The indemnifying party (the one covering the costs) has the right to assume the handling, settlement or defense of any claim or litigation. The indemnified party (the one not covering the costs) has to cooperate in any way reasonably requested by the indemnifying party. The indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.
Limitation of Liability.
Aflo WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LOST PROFITS, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF Aflo HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY.
General Provisions
1. Assignment.
This agreement is personal to you and is not assignable by you without Aflo prior written consent. Aflo may assign this agreement, without notice or consent, to any corporate affiliate or to any successor in interest, provided that such entity agrees to be bound by these terms.
2. Audit.
Upon reasonable notice, you agree to provide to Aflo sample copies of projects or end uses that contain licensed content, including by providing Aflo with free of charge access to any pay-walled or otherwise restricted access website or platform where content is reproduced. In addition, upon reasonable notice, Aflo may, at its discretion, either through its own employees or through a third party, audit your records directly related to this agreement and your use of licensed content in order to verify compliance with the terms of this agreement. If any audit reveals an underpayment by you to Aflo of five percent (5%) or more of the amount you should have paid, then in addition to paying Aflo the amount of the underpayment and any other remedies to which Aflo is entitled, you also agree to reimburse Aflo for the costs of conducting the audit.
3. Electronic storage.
You agree to retain the copyright notice, the name of Aflo, the content’s identification number and any other information or metadata that may be embedded in the electronic file containing the original content, and to maintain appropriate security to protect the content from unauthorized use by third parties. You may make one (1) copy of the content for back-up purposes.
4. Governing Law/Arbitration.
This agreement will be governed by the laws of Japan.
5. Severability.
If one or more of the provisions in this agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions should not be affected. Such provisions should be revised only to the extent necessary to make them enforceable.
6. Waiver.
No action of either party, other than express written waiver, may be construed as a waiver of any provision of this agreement.
7. Entire Agreement.
No terms of conditions of this agreement may be added or deleted unless made in writing and accepted in writing by both parties, or issued electronically by Aflo and accepted by you. In the event of any inconsistency between the terms of this agreement and the terms contained on any purchase order sent by you, the terms of this agreement will apply.
8. Notice.
All notices required to be sent to Aflo under this agreement should be sent via email to both contact@afloimages.com and mark.eite@aflo.com.
All notices to you will be sent via email to the email set out in your account.
9. Taxes.
You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes, withholding tax and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the licensed content.
10. Overdue Invoices.
If you fail to pay an invoice in full within the time specified, Aflo may:
1. Add a service charge of 1.5% per month, or such lesser amount as is allowed by law, on any unpaid balance until payment is received.
2. Suspend the account until payment has been made in full.
11. Licensing Entity.
The Aflo licensing entity under this agreement is Aflo Co., Ltd. (Japan)