"Images” and “Photographs” mean all viewable renditions furnished by Esto whether
captured or stored in photographic, digital or any other medium whatsoever.
1. Submission is for examination and reference only. Images may not be reproduced,
copied, used in any way including use as sketches or comps without express written
permission on Esto invoice stating the rights granted and terms thereof and payment
of said invoice. In the event of unauthorized use, it is agreed that a retroactive license
can be made available at a fee of ten (10) times the normal reproduction charge.
2. On receipt, be sure to count and inspect the material carefully. As indicated on the
transmittal, count shall be considered accurate and quality deemed satisfactory unless
a written explanation is received with a copy of the transmittal form within 24 hours
of delivery.
3. If prints or transparencies are submitted, loan and rights granted for the use thereof
are based on return of all items, safely, undamaged and in the same conditions as
delivered. Recipient assumes insurer’s liability, not bailee’s, for such return by bonded
messenger, courier or by certified mail, (return receipt requested), prepaid and fully
insured.
4. The monetary compensation for loss or damage of an original transparency or
photograph shall be determined by the value of each individual image. Recipient
agrees, however, that the reasonable value of such lost of damaged photograph or
transparency shall be fifteen hundred dollars ($1500). In the case of prints, duplicates
or digital images, the value is twice the replacement cost. For irreplaceable signed fine
art prints the value shall be equivalent to two (2) times current retail cost. Esto agrees
to the delivery of the goods herein only upon the express covenant and understanding
by Recipient that the terms contained in the paragraph are material to the agreement.
Recipient assumes full liability for its employees, agents, assigns, messengers and
freelance researchers for the loss, damage or misuse of the images.
5a. For material delivered as film or in physical, photographic form, holding fees of $5
per week per item may be charged after the initial review period of thirty (30) days or, as
otherwise specified on the transmittal, until the photographs are safely returned. One
is not required to return electronic files, but the material may not be archived by any
party for a period of more than 60 days after publication or termination of the licensed
period, nor stored for future use, nor subsequently reproduced nor distributed, without
specific permission. The images may not be placed in any electronic cataloguing or
electronic delivery service without express written permission.
5b. If images are delivered in physical form, user agrees to return all reproduced
material by the sooner of thirty (30) days after publication or four (4) months after
invoice date or to be liable for holding fees, described above.
5c. Any alteration or manipulation of or derivation from the original image as presented
by Esto must be specifically authorized in writing by the photographer or by the agency.
Client will indemnify, defend and hold harmless Esto against all claims, liability and
damages, costs and expenses including reasonable legal fees and expenses arising
out of any use of images in an unspecified manner or of any images of files that were
altered by the client.
6. Unless otherwise specifically stated, images remain the property of Esto or of the
individual photographer. Upon payment of an invoice issued by Esto, the license is
effective with rights for use only as specified on the invoice and for no other purpose,
unless such images are purchased outright. Rights are granted for use in the United
States only, unless otherwise specified. Recipient does not acquire any right, title of
interest in or to any images, including, without limitation, any electronic reproduction
or promotional rights and will not make, authorize or permit any use of the particular
photograph(s), plate(s) or scan(s) made therefrom other than as specified herein.
7. Recipient is solely responsible for loss or damage and will indemnify Esto against
any loss or damage commencing with receipt by Recipient of such photographs until
their return to and receipt by Esto. In this connection, Recipient assumes an insurer’s
liability herein for the sale and undamaged return of the material to Esto. For return
shipping instructions, see paragraph 3, above.
8. No model, property or other releases exist for any images unless the existence of
such release is specified in writing by Esto. Recipient shall indemnify Esto against all
claims arising out of the use of any image(s) if the existence of such release has not
be specified in writing by Esto.
In any event, the limit of Esto’s liability shall be the sum received per invoice for the
use of the particular image(s) involved. User will hold Esto harmless from all claims for
the use of images, including defamatory use.
9. This agreement is neither assignable nor transferable on the part of the Recipient.
10. Only the terms and use herein set forth shall be binding upon Esto. No purported
waiver of any of the terms herein shall be binding on Esto unless subscribed in writing
by Esto.
11. Time is of the essence in the performance by Recipient of its obligations for
payments and return of photographs hereunder. No rights are granted until full payment
has been made to Esto, even though Recipient has received an invoice. Any claims
for adjustment or rejection of terms must be made to Esto within ten (10) days after
receipt of invoice. In the event that images are used by Recipient in publications, then
Recipient shall send to Esto, on a semi-annual basis (June 30 and December 31),
a certified statement setting forth the total number of sales, sublicenses, adaptation,
translations and any other uses.
12. Payment is required within thirty (30) days of invoice date. Thereafter, a service
charge of 2% per month, (24% per year), is applied to the balance until paid in full.
Receipt of an invoice outlining fees and subsequent rights does not constitute copyright
clearance nor permit distribution or an image. Licensing rights are conveyed only on
full payment of the invoice.
13. Recipient shall provide Esto with two (2) free copies of such publication as soon
as it is ready for distribution. If material is published in electronic form, provide specific
links when the images are posted.
14. Rights are being reserved to the Recipient when an invoice is created. If such
rights are not being used, Recipient must notify Esto with five (5) days of receipt of the
invoice. Failure to do so amounts to the acceptance of the invoice terms and payment
of invoice is due in full.
15. Requests for adjustment of terms or of amounts due must be made in writing
within ten (10) days of receipt. Holding material or using images constitutes acceptance
of above terms which incorporate hereby Article 2 of Uniform Commercial Code. No
waiver is binding unless set forth in writing.
16. Adjacent credit line for the photographer and agency must accompany reproduction
as indicated on Esto invoice or the fee will be increased. The fee for credit line listed
but not shown adjacent to the image will be twice the agreed rate while total omission
will call for a fee of three times the rate. For electronic reproduction, adjacent credit
line with a link to Esto website, www.esto.com, is required.
17. All rights not specifically granted herein to Recipient are reserved for Esto’s use
and disposition without any limitations whatsoever.
Disputes or Claims Arising out of Submission and/or Use
18. Any and all disputes, with the exception of copyright claims, arising out of,
under or in connection with this agreement, including without limitation, the validity,
interpretation, performance and breadth hereof, shall be settled by arbitration in
Westchester County, New York, pursuant to the rules of the American Arbitration
Association. Judgment upon the award may be rendered in the highest court of the
forum, State or Federal, having jurisdiction. This agreement, its validity and effect, shall
be interpreted under and governed by the laws of the State of New York.
19. Copyright claims shall be brought in the Federal Court having jurisdiction.
20. If Esto is caused to present claims or suits as a result of any breach of the above
terms set forth, it shall be made whole for such reasonable legal fees of costs by
Recipient or user herein. Recipient shall pay all arbitration and court costs, reasonable
attorney’s fees plus legal interest on any award of judgment.
21. User or Recipient agrees that the above terms are made pursuant to Article 2 of
the Uniform Commercial Code and agrees to be bound by same, including specifically
the clause to arbitrate disputes.
22. Terms and conditions adapted from recommendations of the American Society of
Media Photographers and the Picture Archive Council of America.