digitalrailroad.net | Marketplace

DIGITAL RAILROAD USER AGREEMENT

This Web site is using technology services provided by Digital Railroad. You must agree to the following Digital Railroad User Agreement in order to use this and any other Web site powered by Digital Railroad.

This User Agreement, and all of the applicable documents referred to in these terms and conditions (collectively, the “Agreement”), is a legal agreement between you (“User”) and Digital Railroad, Inc., (“Digital Railroad”) a Delaware corporation, with offices at 116 East 16th Street, Floor 12, New York, NY, 10003, USA governing use of the Digital Railroad Web site and any Web site on the Digital Railroad network (collectively, the “Site”) whether you just browse the Site, subscribe to its services, purchase products, or make any other use of this Site.

By selecting the “I Agree” box and or accessing or using any part of this Site, including Member Sites, User agrees that User has read, understands, and agrees to be bound by this Agreement and will comply with all of the terms and conditions of this Agreement. If User does not agree to be bound by this Agreement, User is not permitted to access or use any part of this Site or the services provided.

Digital Railroad reserves the right to make changes to this Agreement at any time by posting an amended Agreement on its Site. Any subsequent use of any part of the Site will be considered User’s acceptance of the amended Agreement. Users should review the Agreement on the Site from time to time to become familiar with any changes. Users can review the most current version of the Agreement at www.digitalrailroad.net.

Definitions

For definitions of capitalized legal terms used in this document, please see Definitions.

Privacy Policy

Digital Railroad values your privacy. Please review our Privacy Policy at http://www.digitalrailroad.net/corpsite/community/company/privacy_policy which describes the kinds of information we collect, how we collect it, and how we use it.

Copyright

All Content displayed on the Site is protected by United States copyright laws and any other international treaties.

If, at any time in its sole and absolute discretion, Digital Railroad determines that any User has or will infringe upon any copyrights of anyone else through use of the Site or the Service, or posting or attempting to post any Content that does not meet the requirements of this Agreement, Digital Railroad may remove and delete such Content without any liability to User or any third party.

In accordance with The Digital Millennium Copyright Act (“DMCA”), Digital Railroad will remove all potentially infringing Content upon formal notice to Digital Railroad as described below. Digital Railroad reserves the right to remove any Content and discontinue membership or use of the Service accordingly. Digital Railroad may permanently discontinue Service to any and all repeat offenders of the DMCA.

Reporting a Violation

If any Content on this site is in violation of the United States or any other applicable intellectual property laws, please provide written notice to Digital Railroad via electronic submission only. Send notices or counter notification to:

The notice must include the following information:

Information reasonably sufficient for Digital Railroad to contact you, such as your name, address, telephone number, and email address;
Identify the copyrighted Content that you claim has been infringed upon;
Identify the infringing activity to which access is to be disabled, and information reasonably sufficient for Digital Railroad to locate the activity;
A statement by you that you have a good faith belief that the use of the Content in the manner complained of is not authorized by the copyright owner, its agent, or the law;
A statement by you, including a physical or electronic signature, made under penalty of perjury, that the information provided in the notice is accurate and that you are authorized to act on behalf of the copyright owner of the allegedly infringed Content.

Members may file a counter notification pursuant to sections 512(g) (2) and (3) of the Digital Millennium Copyright Act. The notification must have the following:

Your name, address, and telephone number, and a statement by you that:
- You consent to the jurisdiction of the federal district court for the judicial district in which you are located, or if outside of the United States, for the judicial district in New York, NY.
- You accept service of process from Digital Railroad or an agent of Digital Railroad.
Identification of the copyrighted Content that has been disabled or removed by Digital Railroad and the location of Content prior to removal.
A statement by you that you have a good faith belief that the material was disabled or removed by Digital Railroad by mistake or misidentification.
A physical signature by you made under penalty of perjury.

Digital Railroad may disclose your information to a third party that alleges you have infringed upon their intellectual property rights.

Ownership

Digital Railroad solely and exclusively owns all intellectual property and other rights, title and interest in and to the Service and the Site (exclusive of Archive Owner Content). Digital Railroad has the sole and exclusive right to obtain trademark and copyright registrations, patents, and other protections in and to the Service and the Site, excluding Content on Member Sites. User does not acquire any right, title or interest in, under this Agreement or otherwise.

User has no right to modify, extend, or prepare derivative works of the Service. Any feedback and suggestions provided by User with respect to the Service shall be owned by Digital Railroad. User assigns all right, title, and interest it may have in such feedback and suggestions to Digital Railroad. User has no right to sell, transfer, license, and sublicense or otherwise distribute the Service, any component of the Service, or any products or services derived or developed from or bases on the Service to any third party.

User Conduct

Generally, User must use the Site in a manner that demonstrates good taste and respect for the rights of Digital Railroad, Members, and third parties. User must comply with all terms, conditions, laws and treaties applicable to User’s use of the Site and Service. User may not use the Service or the Site to engage in, promote, facilitate, or encourage any illegal activities or any activities that may violate the rights of others, including without limitation the harassment of any third parties. User may not attempt to damage, disable, overburden, gain unauthorized access to, or otherwise interfere with the Service or the Site or any system, service, or network accessible through the Service or Site, including without limitation, deliberate attempts to overload a system. User may not gather or collect email addresses or other contact information of Members through the Site or Service for the purpose of sending unsolicited emails or other unsolicited communications or use automated scripts to collect information about the Site or Service or for any other purpose.

Users will NOT upload or provide for upload to the Service, or otherwise display, transmit, or distribute using the Service any Content that (a) infringes or misappropriates any intellectual property or other right of any third party or that User otherwise does not have sufficient right to; (b) is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, pornographic, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable; (c) is harmful to minors in any way; or (d) contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment.

Circumvention of Marketplace or any other Digital Railroad Aggregate Feature (i.e. for the purposes of avoiding transaction fees, reducing licensing fees, etc.) is strictly prohibited by all Users and will be monitored by Digital Railroad. For clarification purposes, all Marketplace and Marketplace Aggregate Feature transactions must be finalized within Marketplace and/or by Marketplace Sales. All members are required to report all known circumvented sales to accounting@digitalrailroad.net. Circumvention within Digital Railroad may result in suspension of Digital Railroad membership.

Registering As a Member

Digital Railroad requires that you enter into additional agreement(s), beyond this User Agreement, if you wish to use the Site for more than just browsing (for example, to license Content).

To become a Member, User must register with Digital Railroad through its online registration process at the Digital Railroad corporate site currently located at www.digitalrailroad.net, one of its Member Sites, or any other Digital Railroad site in which Member registration is available. Only Members have the right to license Content from Member Sites, Marketplace or any Aggregate Features.

User must provide Digital Railroad with accurate and complete contact information if User registers as a Member. User must promptly notify Digital Railroad if any of this information changes.

User will need to select a password upon registration. User will be responsible for all use of this password, including without limitation, any use by any unauthorized third party. User must notify Digital Railroad immediately if User believes this password has or may have been obtained or used by any unauthorized person or entity. In addition, User must notify Digital Railroad immediately if User becomes aware of any other breach or attempted breach of the security of Digital Railroad.

Use of Content

Archive Owner grants Users the right to use Content found on the Site for Comp purposes only, as described above. In no event shall Comp Content be used in any material or display accessible by the public or in any final product.

Rates and rights must be negotiated before any use of Content is permitted other than Comp use. All rights not expressly granted in writing remain the rights of the Archive Owner.

Marketplace

User understands that within Marketplace, all Content and Content metadata, including but not limited to, rights and restrictions, are provided by Archive Owners. User understands that Digital Railroad makes no guarantee or representation regarding Content or Content metadata including updates, modifications, and or replacements of such, or the time in which updates, modifications and/or replacements will be viewable by Users. User must confirm availability of Content for User’s intended use of the Content, including but not limited to, rights restrictions and territory availability. User will be held liable for any use of Content beyond such availability.

Archive Owners are required to accurately reflect whether or not a Model Release or Property Release is available and are required to make available to Buyers a copy of the Model Release or Property Release upon request. However, User understands that Digital Railroad makes no guarantee or representation regarding the availability of Model Release or Property Releases or the suitability of such releases for User’s intended use.

Archive Owners must make available to Buyers all Content that has been removed from Marketplace, for at least 6 months after the removal date if that Content was in a Buyer light box or shopping cart on the Site prior to removal, except where Content is no longer legally available. However, User understands that Digital Railroad makes no guarantee or representation regarding the availability of Content.

All transactions in USD may have currency exchange rates provided within Marketplace which are based on various public sources and are provided for informational purposes only and are not verified as accurate. Actual rates from your local bank, credit card company, or other institution may vary.

Buyers may obtain a transaction refund for Royalty-Free Content within 7 days of transaction and for Rights-Managed Content within 14 days of transaction, subject to a 50% cancellation fee and subject to Marketplace sales staff approval.

Buyers grant Digital Railroad the right to review their credit credentials if they are requesting payment on account. Digital Railroad will use good faith when establishing, reviewing, and monitoring reasonableness of credit limits and outstanding balances. Digital Railroad is not obligated to verify the character or financial position of any Buyer paying via an automated system, including but not limited to, electronic funds transfers, credit card, etc.

Representations and Warranties

Each party represents and warrants to the other party (i) that it is of legal age and capacity, and has the full power and authority to enter into and perform under this Agreement; (ii) the execution and performance of its obligations under this Agreement do not constitute a breach of or conflict with any other agreement or arrangement by which it is bound, or any applicable laws, regulations or rules; and (iii) that this Agreement is a legal, valid, and binding obligation of the party executing this Agreement, enforceable in accordance with its terms and conditions.

Disclaimers, Exclusions, and Limitations

Digital Railroad provides the Site and the Service on an “as is” basis. Digital Railroad does not represent or warrant that the Site, Service, or the use of either (i) will be uninterrupted; (ii) will be free of inaccuracies or errors; (iii) will meet User’s requirements; or (iv) will operate in the configuration or with the hardware or software of User.

DIGITAL RAILROAD WILL NOT, IN ANY EVENT, BE LIABLE TO USERS OR ANY THIRD PARTY FOR ANY DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA, OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE USE OF THE SITE OR SERVICE OR FOR DAMAGE TO, OR LOSS OR DETERIORATION OF, ANY CONTENT.

Digital Railroad makes no warranty regarding the quality or non-infringement of any Content. Digital Railroad makes no warranties other than those made expressly in this agreement.

Third-party links, services, resources, and information that Digital Railroad provides or makes available through the Site are not controlled by Digital Railroad. These services may have their own terms of use and other policies. User will be governed by such terms and policies as well as the terms of this Agreement. Digital Railroad makes no warranties regarding such third-party services, resources, and information, including without limitation, warranties regarding the quality or non-infringement of such third party services, resources, and information. Digital Railroad will not be liable in any way for User’s use of or reliance on such third-party services, resources, or information.

Users are solely responsible for their interactions with other Users of the Site and Service. Digital Railroad reserves the right, but has no obligation to monitor disputes between Users.

In no event shall the total liability of Digital Railroad or its providers from any cause whatsoever, arising from or related to the terms or use of the Site or Service or the express terms of this Agreement, exceed the amounts paid by User to Digital Railroad, if any, for the use of the Site or Service and shall not be claimed more than 12 months after the date of cause. This limitation of damages is a fundamental element of the offering of the Service by Digital Railroad to User. This Site and the Service would not be provided by Digital Railroad without such limitations.

Release

User releases Digital Railroad (and its affiliates, officers, directors, agents and employees) from any and all claims, causes of action, suits, liabilities, demands, damages, losses, costs, or expenses of any nature whatsoever, known or unknown, whether direct, consequential or otherwise, known and unknown, arising out of or in any way connected with any dispute or claim User has with any other User. If User is a California resident, User waives California Civil Code §1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

Electronic Communications; Notices

The information communicated on this Site constitutes an electronic communication. User agrees that Digital Railroad may communicate electronically and that such communications, as well as notices, disclosures, agreements, and other communications that Digital Railroad provides to User electronically, including without limitation by posting on the Site or by email at the address designated by User, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by Digital Railroad. Notices and communications to Digital Railroad must be sent to the applicable address given in this Agreement or to Digital Railroad at 116 E 16th St. 12th Floor New York, NY. 10003.

Jurisdiction

This Agreement will be governed by the laws of the State of New York. Any action or proceeding to enforce this Agreement will be brought in the federal or state courts located in New York.

Termination

In its sole and absolute discretion, with or without notice to User, Digital Railroad may suspend or terminate rights under this Agreement. The Site and the Service, and the benefits of each, are offered at the discretion of Digital Railroad. Digital Railroad has the right to modify or discontinue, temporarily or permanently, the Site or Service, in whole or in part for any reason, with or without notice to User. User agrees that Digital Railroad will not be liable to User or any third party for any modifications or discontinuance of the Service.

The following provisions of this Agreement will remain in effect regardless of any termination of User’s use of the Site or Service, or termination of this Agreement: Ownership; Disclaimers, Exclusions, and Limitations; Indemnification; Electronic Communications; Notices, Jurisdiction; Termination; and Miscellaneous.

Miscellaneous

Neither this Agreement, nor any rights or obligations of User pursuant to this Agreement or regarding use of the Site or Service, is assignable or transferable by User without the prior written consent of Digital Railroad, and any attempted assignment without Digital Railroad’s consent is void and of no force or effect. This Agreement is binding upon each party of this Agreement and their successors and permitted assigns.

No failure or delay by a party in exercising any right, power, or privilege under this Agreement will operate as a waiver of such, nor will any single or partial exercise of any right, power, or privilege preclude any other or further exercise of any other right, power, or privilege under this Agreement. This Agreement may not be modified except as expressly provided within the Agreement.

User and Digital Railroad are independent contractors, and no agency, partnership, joint venture, employee-employer relationship is intended or created by this Agreement.

If any provision of this Agreement is determined to be invalid or unenforceable, that determination will not affect the validity of enforceability of any other provision of this Agreement, all of which will remain in full force and effect.

This Agreement, including all of the terms, conditions, rules, and policies referred to within, contains the understanding of the parties regarding its subject matter.

Last updated August 30th, 2007