PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT. YOUR ACCEPTANCE OF THE AGREEMENT IS AN ABSOLUTE CONDITION OF THE USE OF ANY PRODUCT OR SERVICE OF 123RF LIMITED ("123RF").
This Agreement is entered into between 123RF, conducting business or transactions through and as 123RF.COM and/or 123ROYALTYFREE.COM (the "Sites
") and the user ("You
") who downloads Audio Content (defined below) from any of the Sites (or through 123RF, its Distributors or its authorized affiliates).
You are solely responsible to ensure the confidentiality and security of Your registered account username and password and may not allow anyone else to use or access such username or password. Each use/activity/transaction originating from Your username/account will be attributed to and, be held responsible by You, regardless of whether such use/activity/transaction was known to or approved by You. You must not use any automated means to access, log-in or register accounts on the Sites.
You have agreed to be bound by this Agreement and by downloading any Audio Content from 123RF, You acknowledge that You have read, understood, and accepted the Agreement entirely. We reserve the right to amend, change, alter, substitute or otherwise modify the terms and conditions of this Agreement (and other terms and conditions, guidelines or policies at the Sites) at any time ("Update
"). Each Update will be dated and indicated on the Sites, and such indication shall serve as effective notification to You. Your continued (i) download of Audio Content from the Sites (or receipt of Audio Content from 123RF or its approved affiliates, upon request); or (ii) registration of user account, after two (2) weeks of such Update notification will constitute your unconditional acceptance of the Update.
123RF represents to the best of its knowledge that it owns all rights or has all requisite authority, including all copyright in and to the Audio Content, and is authorized to allow You to access, acquire, and use the Audio Content under the terms and conditions of this Agreement. The copyright and all other rights of the Audio Content shall remain with 123RF and its respective suppliers/contributors.
(as used in this Agreement unless the context otherwise requires)
" has the meaning ascribed to it in Section 12.
" means any sound/audio (including music, sound effects, musical compositions, musical arrangements, jingles, track compilations, sound and master recordings, non-musical audio recordings, voice and voice recordings and sound / audio clips), original audio digital files, or any copies thereof subject to this Agreement, offered for licensing by 123RF, or downloaded by or otherwise supplied to You by 123RF.
" or "Customer
" means the direct end-user clients / customers of Yours who use Audio Content only in the form of a Licensed Work Reproduced or produced by You.
" means any performing, mechanical, or other similar rights society (e.g. ASCAP, IFAMLA, MACP, BMI, SESAC, SOCAN, KOMCA, SACD, SACEM, MCPS, PRS, PPL, GEMA, GVL, SGAE, AIE, MCPS, SDRM, JASLAC, etc.) in any jurisdiction that collects and administers royalty payments on behalf of music publishers, writers and performers.
"Commercial Media and Products
" has the meaning ascribed to it in Section 2.3(c).
" means third party licensed resellers of Audio Content by way of partners, API partners, marketing entities, distributors and other resellers, each of whom is authorized and approved by or, affiliated to, 123RF.
" means by using less than an entire Audio Content or using the Audio Content in an incomplete or altered form, including editing, looping, enhancing, adapting, distorting or modifying, provided that any change shall not alter the fundamental character of the Audio Content used, or entitle any ownership rights to be claimed from the Audio Content (in its original or Edited form), including copyright from the derived work or Licensed Work.
" has the meaning ascribed to it in Section 20.
" has the meaning ascribed to it in Section 2.
" means the end-product or end derivative work that has been Reproduced, Synchronized, Edited or created by or on behalf of You using independent skill and effort and that incorporates Audio Content and other material, and which Audio Content shall be inseparable from the Licensed Work to be a standalone Audio Content.
" has the meaning ascribed to it in Section 15.
" means any form of copying or publication of the whole or a part of any Audio Content (on a basis detached from the full Licensed Work), via any medium and by whatever means, the distortion, alteration, cropping or manipulation of the whole or any part of the Audio Content, and the creation of any Licensed Work or derived work from, or that incorporates, Audio Content, whereby such Audio Content shall not be capable of being disassociated or reverse engineered from the Licensed Work/derived work by the end user or any third party to be a standalone Audio Content.
" means to use Audio Content in timed relation to other elements.
You agree to access, acquire, and use the Audio Content as follows:
1. Terms and Conditions
. This Agreement and the terms and conditions herein constitutes a binding legal agreement between You and 123RF.
. 123RF grants You a non-exclusive, non-transferable license to use Audio Content according to the terms and conditions of this Agreement. If You are purchasing on behalf of a licensee ("Licensee
"), You hereby represent and warrant that You are authorized to act on behalf of such Licensee and have full authority to bind the Licensee to this Agreement. If the Licensee fails to abide by the Agreement, You shall be personally and fully liable on a joint and several basis for such failure and any resulting damage or claim. For the purposes of this Agreement, all terms and conditions of the Agreement as applicable to You shall apply equally to the Licensee (as the case may be).
3. Society Royalties
. 123RF has used reasonable efforts to ascertain that the Audio Content do not originate from members of any Collection Societies and that no performing rights or other additional royalties are required to be paid to such organizations. However, in certain jurisdictions (e.g., France and Spain), You may be required to pay royalties to performing rights or other rights societies due to the exploitation of Audio Content (even if the contributor is not a member of any Collection Society in such jurisdiction(s)). You must determine if such requirements exist in the applicable jurisdiction and be solely responsible for any such applicable fees.
4. Seat Restrictions
a.Only You are permitted to use, access, Reproduce or Edit Audio Content.
b.Only You are permitted to transfer files of Your Licensed Work containing Audio Content to Your Clients / Customers where they shall have no further rights to use the Audio Content (in any form or manner separate from the Licensed Work) either to access, extract, disassociate, reverse engineer, modify, repurpose, aggregate, Edit or Reproduce such Audio Content from the Licensed Work that You provide.
c.You can only use and install Audio Content in one location at a time. If You require Audio Content to be downloaded or installed in more than one location (for example, multiple computer workstations) or accessible by more than one person, You must re-license the Audio Content from the Sites (or directly with 123RF) for each such use, or purchase an Audio Content multiseat license or Corporate+ license from 123RF or the Sites (if available).
d.You must not violate (directly or indirectly, including by circumvention) or, attempt to violate the integrity of, any data protection measures on the Sites.
e.You may not assign, sell or otherwise transfer, directly or indirectly, your registered account to any third party without the written consent of 123RF.
5. Audio Content Usage
. You may, subject to the terms and conditions of this Agreement, access and acquire Audio Content via the Sites (or from 123RF or its affiliates directly), and use the acquired Audio Content for the following purposes, provided You do not violate the rights of any third party as part of, in connection with or for use in the following Licensed Work:
a.advertisements on television, radio, web/mobile (including podcasts), commercial theatre and DVDs, and infomercials or tags for products, services and organizations;
b.promotional activities which include exhibitions or performances in commercial, retail, wholesale or other sales locations to promote products, services and organizations;
c.website background music or sound or similar use for personal or commercial websites;
d.television programs provided that the Audio Content is Synchronized with visual works (i.e., not as Audio Content on a standalone basis);
e.radio programming provided that the Audio Content is Synchronized with other musical or audio works; e.g., You may not broadcast Audio Content as part of Your music programming but You can integrate and Synchronize it in a radio drama, radio documentary, radio production or other radio-centric Licensed Work;
f.motion pictures intended for exhibition for the purpose of creating awareness provided that the Audio Content is Synchronized with visual works;
g.as a theme song for any motion picture, or television, radio or web program;
h.products, services, presentations or exhibitions intended to market, promote or educate on goods, wares and/or services;
i.ringtone, ring acoustic and other tonal systems for personal telecommunication devices (provided that there is no intention of re-sale or re-distribution);
j.home videos for Your own personal use;
k.subject strictly to the restriction in Section 6(i), an unlimited number of Reproductions of Synchronized Audio Content in a tangible medium (like a CD or DVD), or an element of the Synchronized Audio Content for the purposes of re-sale; and/or
l.in relation to each Audio Content, an unlimited number of items of Licensed Work products (provided that such Licensed Work is not prohibited by this Agreement) for re-sale, license or other re-distribution, e.g., toys, games, cards, and other similar entertainment products.
6. Audio Content Restrictions
. You may NOT (and may not permit any third party) under any circumstances to:
a.use, access or download any Audio Content which is not intended for or licensed by You;
b.use Audio Content as a part of a physical item, software, program or template that is to be resold. For this, You must purchase Audio Content through the 123RF Extended Audio License available on the Sites;
c.distribute the Audio Content, electronically or in any storage medium (except as specifically authorized or for the purposes under Section 5 above);
d.download, copy, capture or rip any Audio Content other than by the download means/methods/functions provided by the Sites;
e.provide any Client/Customer/third party access to the 123RF's Audio Content library in any way;
f.transfer or make conceivable for transfer (to any person or entity other than You) any derived work incorporating Audio Content other than Licensed Work;
g.allow the use of Audio Content by any Client/Customer/third party to Reproduce or Edit any marketing material or product (end-product of otherwise);
h.authorize any third party to use or access the Audio Content for any purpose or resell, sublicense, or otherwise make available the Audio Content for use or distribution separately or detached from a product, Licensed Work or Web page;
i.use any Audio Content to compile, manufacture, distribute or sell records, CDs, DVDs, jukeboxes or any other "audio-only" (or substantially/primarily "audio-only") product comprising any Audio Content, in whole or in part, that is NOT meaningfully Synchronized or combined with other audio, media or musical Audio Content to create a genuine non "audio-only" Licensed Work. E.g., You cannot download and compile fifteen songs from the Audio Content (or from other sources together with Audio Content from the Sites) to create a CD / compilation to sell, distribute or relinquish to a third party (i.e., for other than purely personal usage);
j.sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute to third-parties Audio Content that is not Synchronized or combined with visual components or other audio or musical elements (other than as permitted in this Agreement);
k.use, share or display Audio Content in any manner of publication, re-distribution or re-sale in any format, service or medium (such as peer-to-peer, file sharing network or arrangement, design template application, music download sites, music CDs, electronic greeting card web sites, web templates and or in any other way that enables Audio Content to be accessed by any third party) or make Audio Content available to be extracted or accessed or reproduced as an electronic file;
l.copy or adapt the object code of the Sites, or reverse engineer, reverse assemble, decompile, modify or attempt to discover any source or object code of any part of the Sites or the Audio Content, or circumvent or attempt to circumvent or copy any copy protection mechanism or access any rights management information pertaining to the Audio Content;
m.use any Audio Content in any manner that violates, plagiarizes, misappropriates or infringes the rights of third parties including, without limitation, copyright, trademark rights, rights of privacy or publicity, performance rights, confidential information or any other right;
n.use Audio Content in connection with any pornographic, offensive, political, racist, ethnically or culturally offensive, obscene or indecent, sexually explicit, immoral, defamatory, intrusive of privacy or illegal materials; or in a manner which endorses violence or acts of terrorism, is discriminatory towards race, gender, religion, faith or sexual orientation, or which purports to endorse products or services carrying sensitive mental/health connotations;
o.use automated or programmatic means or methods to download Audio Content;
p.remove any notice in relation to any proprietary right that is embedded in the Audio Content or avoid, bypass, remove or impair any measure that effectively controls access to the Audio Content;
q.delete any composer/author attributions, legal notices, or proprietary designations or labels in any Audio Content file that is downloaded;
r.use Audio Content, in whole or in part, to create derivative work that may falsely express that You are the original creator of the work; and/or
s.use Audio Content in any manner that is in breach of this Agreement.
7. Credit Line
. When "Audio Content
" is used in any production other than for personal home use, credits must be given to the Audio Contributor in the following form: "[Contributor's Name] © 123RF.com
8. Third Party Copyright
. You understand that Audio Content is copyrighted and may be owned by a third party, and any unauthorized use by you may be an infringement of such copyright.
9. Unilateral Action
. You understand and agree that 123RF may, in its sole discretion:
a.monitor anything you download from the Sites, as frequently as 123RF in its sole discretion determines, for any violation of this Agreement;
b.limit downloads to a fixed amount of total downloads per 24 hour period, per user, as to insure the best possible service to all 123RF subscribers / users;
c.track any abuse of Your username and password in connection with the Sites or in connection with this Agreement;
d.terminate Your account immediately if we detect You are using, or are trying to use any automated means to download Audio Content; and/or
e.terminate Your account, without notice, if it finds what it believes to be any violation of this Agreement and/or any abuse of Your username and password. If Your account is terminated for any violation of this Agreement and/or any abuse of a username or password, You lose all rights to the Audio Content, must immediately delete all Audio Content acquired from 123RF, comply with Section 23 below on termination, and forfeit all fees paid.
. 123RF, the Sites and the Audio Content are made available to You "AS IS," "AS AVAILABLE," and "WITH ALL FAULTS." 123RF, its employees, directors, officers, shareholders, advisors, Distributors, affiliated entities and anyone else associated with 123RF (the "123RF Parties
") disclaims, to the fullest extent permitted by law, any and all warranties, express or implied, including without limitation warranties of merchantability, fitness for a particular purpose, non-infringement, or that Your usage of 123RF or the Sites will be uninterrupted, error free of computer viruses or other damaging materials. When You access and acquire Audio Content, You do so at Your risk. The 123RF Parties also disclaim any and all common-law duties, including without limitation duties of reasonable care and workmanlike effort.
11. False Designation
. You understand and acknowledge that neither the 123RF Parties nor anyone acting on behalf of 123RF has made any representation or warranty that Your use of Audio Content will not infringe or violate the trademark rights of any third party, or constitute a false designation of origin or any other form of unfair competition.
12. Independent advice
. You understand that You should seek competent and independent counsel before using Audio Content on or in connection with any goods or services or for any other commercial purposes.
. Save for the limited circumstance in Section 18, in no event will any of the 123RF Parties be liable for any indirect, special, incidental, economic, or consequential damages including but not limited to loss of revenue or profits, arising out of the use, or inability to use, the Audio Content, even if 123RF has been advised of the possibility of such damages. Save for the limited circumstance in Section 18 and the Liability Cap (as defined in Section 20 below), in no event will the liability of the 123RF Parties exceed the amount paid by You for accessing, acquiring, and/or using Audio Content from the Sites, 123RF or its approved affiliates ("Paid Fees
"). However, as some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to You.
. You represent and warrant that:
a.You are at least 18 years of age and have the right to enter into this Agreement;
b.You will not use Audio Content in any way that is not permitted by this Agreement and that all steps shall be taken to ensure that no unauthorized use or use beyond the terms of this Agreement of Audio Content by any person occurs;
c.Your use of Audio Content will not violate any applicable law or regulation of any country, state, or other governmental entity;
d.the information You provide to 123RF is accurate and true, including, without limitation, all credit card information; and
e.any account(s) opened or maintained by You on 123RF or the Sites will only be accessed and used by You for the purposes and on terms and conditions stipulated on the Sites and in this Agreement, and You shall ensure that no person other than You shall have access to or use Your account(s) or password(s) to such account(s).
. You agree to fully defend and indemnify the 123RF Parties, and each of their successors, licensees, and assigns free and harmless from any and all claims, liabilities, costs, losses, damages, or expenses, including reasonable attorneys' fees and expenses, arising in connection with Your use of Audio Content and the Sites or of any breach or alleged breach or of any falsity, inaccuracy or misrepresentation of any representation, warranty, or other promise made by You in this Agreement.
16. 123RF Indemnity
. Subject to the terms of this Agreement, and provided that You have not breached the terms of this or any other agreement with 123RF, 123RF agrees to defend, indemnify, and hold You harmless up to the Liability Cap (defined in Section 20 below). Such indemnification shall only apply to claims for damages directly attributable to 123RF's breach of its representations and warranties in this Agreement, together with the expenses (including reasonable attorneys' fees), arising out of or directly connected to any valid actual or threatened lawsuit, claim, or legal proceeding alleging that the possession, distribution, or use of Audio Content downloaded and used by You pursuant to the terms of this Agreement violate third party intellectual property rights as a direct result of Your substantial and material reliance upon 123RF's representations and warranties contained herein. This indemnification is conditioned upon You notifying 123RF, in writing, of any such claim or threatened claim, no later than five (5) business days from the date You know or reasonably should have known of the claim or threatened claim. Such notification must include all details of the claim then known to You and emailed to firstname.lastname@example.org, Attention: General Counsel. If required, 123RF shall have the right to assume the handling, settlement or defense of any claim or litigation to which this indemnification applies. You agree to cooperate with 123RF in the defense of any such claim and shall have the right to participate in any litigation at your own expense. 123RF shall not be liable for any legal fees and/or other costs incurred prior to receiving complete notification of the claim as provided herein.
17. No modification
. Notwithstanding anything to the contrary contained herein, 123RF shall not be liable for any damages, costs or losses arising as a result of Edits, Synchronizations, Reproductions, modifications or alterations made to the Audio Content or the context in which the Audio Content are used by You.
18. Liability Cap
. 123RF's maximum aggregate obligation and liability to You for all claims (assessed collectively) arising under this Agreement shall be limited to Twenty Thousand United States Dollars (US$20,000.00) or the Paid Fees, whichever the higher (the "Liability Cap
19. Entire Agreement and Governing Law
. This Agreement constitutes the entire agreement between You and 123RF regarding its subject matter until superseded and substituted by any Update(s). Should any provision of this Agreement be held to be void or invalid, that fact will not affect any other provision, and the remainder of this Agreement will be construed to most closely give effect to the parties' intention. Failure by 123RF to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. The interpretation and enforcement of this Agreement shall be governed according to international treaty provisions and other applicable laws.
. This Agreement is effective until it is terminated. You can terminate this Agreement by (i) deleting and destroying all Audio Content downloaded by You and in Your possession, and any Licensed Work(s), and copies/accompanying materials thereof; and (ii) ceasing to use the Audio Content for any purpose. 123RF can terminate this Agreement without notice to You if You fail to comply with any of the terms and conditions of the Agreement. Upon such termination, you must immediately (i) delete and destroy all Audio Content downloaded by You and in Your possession, and any Licensed Work(s), and copies/accompanying materials thereof; (ii) cease using the Audio Content for any purpose; and (iii) confirm in writing to 123RF that the foregoing requirements have been completed.
. Notwithstanding anything to the contrary in this Agreement, neither party shall assign its rights or interests under this Agreement to any third party without the other party's prior written consent in each instance; except that a party may assign its rights, interests and obligations hereunder to any similarly financially responsible entity that is either (i) an affiliate of such party, (ii) the surviving entity of a merger, consolidation, restructuring plan or reorganization in which it participates, or (iii) to the purchaser of all or a majority of all the assets of the party, provided such assignee agrees to assume in writing such party's rights and obligations under this Agreement.
22. Prevailing Language
. This Agreement was originally composed in English and was subsequently translated into other languages. The fidelity of subsequent translations cannot be guaranteed. In case of conflict between the English version and another language version, the English version takes precedence.
23. Right of Third Parties
. Any person or entity who is not a party to this Agreement (whether or not such person shall be named, referred to, or otherwise identified, or shall form part of a class of persons so named, referred to, or identified, in this Agreement) shall have no right whatsoever to enforce this Agreement or any of its terms.
You have agreed to enter into this Agreement and to conduct any transactions contemplated hereunder electronically.