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Wishstock Artist Member Agreement

January 3 , 2007

This site use and license agreement ("Agreement") is between you, the artist member (Member) and Wish-stock.com, dba Wishstock ("Wishstock"). By joining this web site as a member you agree to be bound by this Agreement.

Wish-stock.com, dba Wishstock ("Wishstock") a membership-based website where Site Members showcase their portfolios and provide digital images that can be licensed by a Site User ("Licensee") for a fee per the Wishstock Site Use and License Agreement.

Whereas the Wishstock web site provides:

  1. An internet-based searchable library of digital photos and illustrations (digital images),
  2. An e-commerce site where digital images can be licensed for use,
  3. A membership site where Site Members can upload, manage, and showcase their portfolios and digital images that can be licensed,
  4. A user site where Site Users can create an account, and preview, license, and download digital images.

Whereas Wishstock Site Members pay a membership fee to promote their business information, showcase an online portfolio, offer digital images that can be licensed, and receive a portion of the license fee in payment.

Whereas Site Users can preview available digital images provided by all Site Members, search the online library for specific image types or contents, add select digital images to a light table, create a Wishstock account, save and email your light table(s), broadcast a special image request to all Site Members, and purchase a license to download and use selected digital images.

Definitions

Portfolio Images

This site contains Portfolio Images that depict a visible watermark ("Preview Digital Images"). Users can only view Portfolio Digital Images while in the Member's portfolio.

Preview Digital Media

This site contains Preview Digital Images that depict a visible watermark ("Preview Digital Images"). This license allows users to search for, view, and use Preview Digital Images only as permitted by the Wishstock Site Use and License Agreement.

Licensed Digital Media

The photographs, illustrations, and content in any form (collectively, the "Digital Images") are licensed, not sold, to Licensees by Wishstock for use pursuant to the terms of the Wishstock Site Use and License Agreement. This applies however the Digital Images are delivered to Licensee, whether via Email, CD-ROM, DVD-R, by download from this web site, or otherwise. Wishstock reserves all rights not expressly granted to Licensee herein.

What is Permitted

In exchange for a one-time membership set-up fee and a recurring monthly maintenance fee, Member has the non-exclusive, non-transferable right to participate on the Wishstock site as defined below in The Wishstock Membership Account.

Site Members retain ownership of the Digital Image. Any reference in this Agreement to the Digital Images shall be to each individual item within the Digital Images and also to the Digital Images taken as a whole.

What Is Not Permitted

Without limitation, Digital Images may not be:

  1. Pornographic in nature — Wishstock reserves the right to monitor all site content. Any materials deemed pornographic by site auditors will be removed from the site and those members who post such materials will lose their membership and be removed from the site without recompense. Wishstock management reserves the right to do this without warning.
  2. Nudity in art form is allowed. However, Wishstock reserves the right remove any questionable images without warning. See paragraph 1 under Pornography.
The Wishstock Membership Account

The membership fees cover site inclusion of:

  1. The member's logo and bio brief
  2. The member's full contact info, including email and URL address
  3. An online portfolio gallery with your logo, bio, full contact info and your select images
  4. An online stock portfolio with up to 960 images for sale
  5. Place where member's customers can download the high-resolution images after license purchase
  6. 85% of proceeds received from the licensing of member's stock images
  7. Password protected access to the member site where the member can manage all content and track member's sales activity

Wishstock collects all proceeds from the licensing of stock images. For all paid Members whose membership fees are current, the Member's portion of these proceeds is mailed monthly to the Member on or before the 10th of the following month. *All federal and state taxation laws apply.

Wish-Stock reserves the right to use any image for the sole purpose of advertising the Wish-Stock web site without prior approval from any Member, promotional or paying. Wishstock reserves, at its sole discretion, to revoke the account with or without cause.

You are responsible for maintaining the confidentiality of your account password, if applicable, and you shall not distribute your access information or allow others to use this access information to gain access to this site.

Account Termination

Wishstock may reserve the right to revoke your authorization to display your contact information, a stock portfolio, stock images for license, and any applicable information available on this site at any time.

Either party can terminate membership at will without cause, without notice, and without recourse. Either party can terminate if they are in default of the terms of this Agreement. All rights not specifically granted under this Agreement are reserved to Wishstock.

Remedy for Default

In the event of default of terms of this Agreement, Wishstock will notify members by email or in writing that there is a default, and give them a fixed period of time in which to remedy the situation. If the member does not comply and remedy the situation within the stated time period, then the membership will be immediately revoked (see Effect of Termination).

Effect of Termination

If a membership is terminated, you agree that (i) your contact information, stock portfolio, and stock images for license will immediately become unavailable over the Wishstock site without recourse, (ii) you agree that you waive all rights to any earned license fees that have not been distributed per the normal distribution process as defined in the Wishstock Membership Account. Additionally, you agree not to employ software to "crawl" or search our web site and/or retrieve Digital Images or related information. Your use of this site and any Digital Images shall comply with all applicable law.

Miscellaneous

Inappropriate Content and Site Accuracy

Despite our efforts to provide accurate information, this site may contain technical or other mistakes, inaccuracies or typographical errors. Additionally, this site and any Digital Images may include historically and culturally important Digital Images and text that may contain subjects that reflect the social attitudes and circumstances of a particular time or location. You should be aware that your search may display results containing content that may seem inappropriate to its context, or text that could be potentially offensive.

External Links

As a convenience, our site may link to other sites that may be of interest to you but are not under Wishstock's control. These links do not imply endorsement by Wishstock and we are not responsible for the availability of or the content contained in any linked site.

The Wishstock site may contain or use technology that provides Wishstock and its affiliates with information regarding your use of this site, or which permits Wishstock to audit your compliance with this Agreement via the use of software designed to track and identify Digital Images. Please consult Wishstock Privacy Policy for specific information on Wishstock policies for use of your personal information.

Children

Children (persons under the age of 18) are not eligible to use this site unsupervised and we ask that children do not register for an account or submit any personal information to us. By using this site unsupervised, and/or registering for an account, you warrant that you are 18 years of age or older.

Indemnification

You agree to indemnify, defend, and hold harmless Wishstock against all claims, liability, damages, costs and expenses, including reasonable legal fees and expenses, arising out of or related to (1) a breach of this Agreement, (2) the use of this site and the use of any Digital Image either alone or in combination with any other material, (3), your failure to abide by any restriction regarding the use of a Digital Image, or (4) any claim by a third party related to the use of a Digital Image, alone or in combination with any other material.

Limitation of Liability

WISHSTOCK PROVIDES YOU WITH ITS SITE ON AN "AS IS" BASIS. WISHSTOCK MAKES NO WARRANTY, EXPRESS OR IMPLIED REGARDING ANY DIGITAL IMAGES, ITS SITE, THE ACCURACY OF ANY INFORMATION, OR ANY RIGHTS OR LICENSES UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-FRINGEMENT , OR THAT THE SITE OR ANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

EXCEPT FOR ANY LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED, NEITHER WISHSTOCK, WISH-STOCK.COM NOR ANY WISH-STOCK.COM AFFILIATE SHALL BE LIABLE TO YOU OR ANY OTHER THIRD PARTY CLAIMING THROUGH IT FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR RELATING TO THE USE OF THE DIGITAL IMAGES, WHETHER FRAMED AS A BREACH OF WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, UPON ANY LEGAL THEORY, IN TORT, CONTRACT, FAILURE OF ESSENTIAL PURPOSE, OR OTHERWISE. IN NO EVENT SHALL WISHSTOCK'S OR WISH-STOCK.COM'S OR ITS AFFILIATES' LIABILITY FOR YOUR USE OF ANY IMAGE PROVIDED HEREUNDER EXCEED THE GREATER OF (I) THE AMOUNT PAID BY YOU FOR MEMBERSHIP, OR (2) $500.

Choice of Law / Jurisdiction / Attorneys' Fees

Any dispute regarding this Agreement shall be governed by the laws of the State of Colorado and applicable U.S. Federal law, including Title 17 of the U.S. Code, as amended. The parties agree to accept the exclusive jurisdiction of the state and federal courts located in Colorado , USA . Arbitration . The parties hereto confirm that it is their wish that this Agreement as well as any other documents relating hereto, including notices, has been and shall be written in the English language.

In any dispute between Wish-stock.com and you, Wish-stock.com shall be entitled to recover its reasonable attorneys' fees, legal expert fees, and other legal expenses from you.

No Waiver / Severability

No action of Wishstock or Wish-stock.com, other than an express written Waiver or Amendment, may be construed as a waiver or amendment of this Agreement. Should any clause of this Agreement be found unenforceable, wherever possible this will not affect any other clause and each will remain in full force and effect.

Acknowledgements

You acknowledge that you have read this Agreement and understand it, and agree to be bound by all its terms and conditions. This document constitutes the entire Agreement between the parties with respect to the subject matter hereof and merges all prior and contemporaneous communications. This Agreement will inure to the benefit of and be binding upon the parties, their successors and assigns, except that you may not assign or transfer this Agreement.

Wishstock reserves the right to change this Agreement from time to time at its sole discretion, and your use of the site will be subject to the most current version posted on the site at the time of your use. Account holders will be notified of changes as they occur.