Terms and Conditions :: Abaca USA
Terms and Conditions
The following Terms and Conditions govern your use of Abaca USA Material. "Abaca
USA Material" means any content supplied to you by Abaca USA including without
limitation: (a) the website with the address www.abacasusa.com and
the content appearing on the website other than the Images including,
but not limited to, text, graphics, sound, illustrations, logos,
icons, software and the Abaca USA name (the "Website");
(b) the photographs and images appearing on the Website or otherwise
supplied to you by Abaca USA (the "Images");
(c) the footage and moving images appearing on the Website or
otherwise supplied to you by Abaca USA (the "Footage")
and (d) the features that each comprise a text story with
accompanying Image(s) and/or Footage appearing on the Website or
otherwise supplied to you by Abaca USA (the "Features").
The Terms and Conditions contain warranty and liability disclaimers.
This Site is not intended for use by children under the age of 18 without
the supervision of a parent or guardian.
BY ACCESSING THIS SITE, YOU SIGNIFY THAT YOU : (I) HAVE READ AND
UNDERSTAND THESE TERMS AND CONDITIONS, AND (II) AGREE TO ABIDE BY
THESE TERMS AND CONDITIONS, AS
MAY BE AMENDED FROM TIME TO TIME, EACH TIME YOU ACCESS THE WEBSITE
AND/OR OTHERWISE USE THE ABACA USA MATERIAL. IF YOU DO NOT ACCEPT
THESE TERMS AND CONDITIONS, DO NOT USE THE ABACA USA MATERIAL.
1. Ownership of the Abaca USA Material
The Website is owned and operated by Abaca
US, Inc., a New York corporation ("Abaca USA").
The Images, Footage and Features are owned by Abaca USA or its
The Abaca USA Material and all related rights shall remain the
exclusive property of Abaca USA and its licensors.
2. Use of the Abaca USA Material
Abaca USA grants to you a personal, non-exclusive, non-assignable and
non-transferable right to use the Website on a single computer and
to use the Website and other Abaca USA Material solely as permitted
under these Terms and Conditions, and if applicable any License
entered into with Abaca USA. You may not make any unauthorized or
commercial use of any Abaca USA Material, including the Website,
and you may not engage in any conduct or action that is prohibited
by or violates any federal, state or local laws. You
may not publish, reproduce (which includes placing on an electronic
bulletin board, corporate intranet or the Internet), display in
public, create derivatives works from, communicate to the public,
license, transfer sell, commercially exploit or otherwise
distribute or redistribute any Image or Footage or Feature without
the express written permission to do so (in writing or by email)
from Abaca USA (a "License").
Unless expressly agreed otherwise with Abaca USA in writing, you may not
frame or modify all or any part of the Website.
If you have been supplied with a Website username and password by
Abaca USA, you must not disclose your username or password to any
third party. Any misuse by you of your username and password may
result in your access to the Abaca USA Material being terminated.
You will be responsible for all Images, Footage and Features
downloaded using your username and password including for all
payment due in respect of such Images, Footage and Features.
3. General restrictions on grant of rights in Licenses
Any License granted to you by Abaca USA will be subject to these Terms and
Conditions as well as the terms set out in a License. Unless
expressly agreed otherwise by Abaca USA in writing, these Terms and
Conditions shall prevail in the event of any conflict between them
and any other terms in a License and will supersede any Terms and
Conditions provided by you.
granted to you by Abaca USA is limited to the publication, platform
and/or service in which the Images and/or Footage and/or Features
may be used as set out in the License (the "Customer's
the period of time during which the Images and/or Footage and/or
Features may be used in the Customer's Service (if specified),
the territory in which the Images and/or Footage and/or Features
may be published (if specified), fees or charges to be paid for use
of the Images and/or Footage and/or Features, and any other
restrictions set out in the License.
may at its sole discretion update and/or modify the delivery format
or delivery method of the Images and/or Footage and/or Features at
any time so as to provide a more effective or more efficient
provision of such Abaca USA Material. If a specific delivery
format or method has been expressly agreed with you in writing,
Abaca USA will inform you in advance of any update or modification
that will materially affect your business.
expressly agreed otherwise in writing, Abaca USA grants you rights
to publish the Images, Footage and Features (as applicable) on a
non-exclusive basis, solely for the personal use of your end users,
provided that you:
own and operate the Customer's Service,
will, except to the extent necessary to maintain records for your own
internal and legal purposes, delete all Abaca USA Material that you
are no longer permitted to publish, including any Images and/or
Footage and/or Features that Abaca USA specifically instructs you to
will publish the Images only as provided to you by Abaca
USA without any edits, adaptations or changes other than cropping
and cut outs in a way that does not distort the meaning or the
circumstances depicted in the Image;
will publish the Features only as provided to you by Abaca USA without
any edits, adaptations or changes;
will not edit, adapt or change the Footage in a manner that distorts the
sense or meaning of such Footage;
will publish the Images, Footage and Features only in an editorial context;
publish any Images or Footage supplied with text as part of a
Feature only with such text as part of such Feature;
not publish any Images at a resolution of more than 640 pixels along
the longest axis in any electronic service;
not create any derivative works from any Image, Feature or Footage;
not use the Abaca
USA Material for any purpose except as expressly permitted by a
License and these Terms and Conditions.
You may not use the Abaca USA Material in any way that is or might be
deemed defamatory, libelous, pornographic, obscene or immoral.
WILL INDEMNIFY AND KEEP INDEMNIFIED ABACA USA AGAINST ALL LOSS,
DAMAGE AND EXPENSE (INCLUDING ANY LEGAL AND OTHER PROFESSIONAL
EXPENSES) INCURRED OR SUFFERED BY ABACA USA DIRECTLY OR INDIRECTLY
ARISING (IN WHOLE OR IN PART) FROM ANY USE, REPRODUCTION,
PUBLICATION OR DISTRIBUTION BY YOU (OR ANY PERSON AUTHORIZED OR
PERMITTED BY YOU) OF ANY PART OF THE ABACA USA MATERIAL IN A MANNER
NOT AUTHORIZED BY A LICENSE AND/OR THESE TERMS AND CONDITIONS.
any Customer's Service is an electronic service, the general
Terms and Conditions of the Customer's Service will include
provisions substantially similar to the following:
the Images, Footage and Features may only be used for the user's
personal use and the distribution or commercial exploitation of the
Images, Footage or Features is prohibited;
use of the Images, Footage and Features is at the sole risk of the user;
neither you nor Abaca
USA/any of Abaca USA's licensors gives any warranty that the
supply of the Images or Footage or Features will be uninterrupted or
as to the accuracy or completeness of the Images or Footage or
As soon as you become aware of any unauthorized
use of any Image or Footage or Feature by any user of the Customer's
Service, you shall give Abaca USA full written details of such use.
Abaca USA shall have the right to require you to: (a) enforce the
relevant general Terms and Conditions of the Customer's Service
against any user of the Customer's Service; and/or (b) enable and
assist Abaca USA to enforce the relevant general Terms and Conditions
against any user of Customer's Service in your name; and Abaca USA
will pay your reasonable expenses in so doing.
4. Intellectual Property Rights and Third Party Rights
You acknowledge that, as between you and Abaca
USA, all rights (including intellectual property rights) in the Abaca
USA Material are the property of Abaca USA or its third party
USA may terminate a License if you challenge the ownership of such
Abaca USA (or its licensors) will, at its (or their) option, have the
right to control and/or conduct of all proceedings relating to the
enforcement of such rights, including but not limited to selection of
counsel and the ability to settle disputes with third parties. You
agree to give your full cooperation in protecting such rights
taking any reasonable action regarding such rights as requested by
Abaca USA or any of its third party licensors, and Abaca USA will pay
your reasonable expenses in giving such cooperation.
You agree to comply with any restrictions imposed by Abaca USA and/or its
third party licensors and to ensure that, where appropriate,
copyright permission and/or other arrangements (including payment of
any applicable third party License or other fee) are made directly
with any such third parties. Restrictions, including third party
restrictions, may be provided to you in the captions or other
metadata to Images or Footage or Features, on the Special Information
page of the Website (when launched), elsewhere on the Website, in
another manner by Abaca USA or directly by third parties. If you
have access to the Website, it is your responsibility to check
whether any such restrictions have changed between the time you
download/receive an Image or Footage or Feature from Abaca USA and
the time of publication.
ABACA USA DOES NOT OFFER ANY LICENSE AND GIVES NO WARRANTY OR
REPRESENTATION REGARDING: (A) THE EXISTENCE OR VALIDITY OF ANY MODEL
(OR OTHER) RELEASES FOR ANY IMAGE, FOOTAGE OR FEATURE; (B) THE USE OF
NAMES, PEOPLE, LIKENESSES, TRADE MARKS (REGISTERED OR UNREGISTERED)
OR WORKS OF ART DEPICTED IN ANY IMAGE OR FOOTAGE; OR (C) MORAL RIGHTS
REGARDING ANY IMAGE OR FOOTAGE. IT IS YOUR RESPONSIBILITY TO ENSURE
THAT ALL NECESSARY CLEARANCES ARE OBTAINED, AND NOT THAT OF ABACA
All Images, Footage and Features will be attributed on their publication
in the Customer's Service to "Abaca
USA". Images or Footage (including those within a Feature)
attributed to another agency, broadcaster or publisher will be so
attributed on their publication in the Customer's Service alongside
the Abaca USA credit with an appropriate copyright notice. In
addition, you will comply with any credit requirements expressly
provided to you in the caption to an Image, Footage or Feature, in a
License or otherwise by Abaca USA.
Abaca USA respects the
intellectual property rights of others, and anyone that believes that
its intellectual property appears on this Website without appropriate
authorization is encouraged to contact us at
Abaca USA will use
reasonable efforts to investigate such inquiries, and to take any
action that it, in its sole discretion, believes is appropriate under
5. Charges and Reporting
5.1 You will pay the charges set forth in a License with respect to your
permitted use of the Abaca USA Material (the "Charges")
within 30 days of the date of invoice. All amounts stated are
exclusive of any applicable sales taxes.
All Charges shall be paid in full without set-off, deduction or other
withholding of any amount which may be due to you. Should you be
required by any law or regulation to make any deduction or
withholding on account of tax or otherwise on any sum payable under
License, the sum payable shall be increased by the amount of such
tax to ensure that Abaca USA receives a sum equal to the amount to
be paid under a License.
Without prejudice to any other rights and remedies which Abaca USA may have
and your continuing obligation to pay the Charges, if payment of
the Charges is not received by Abaca USA on the due date, Abaca USA
may withhold its provision of the Abaca USA Material, suspend a
License granted to you, and charge interest on any overdue Charges
from the due date until payment is received at a rate to be
determined by Abaca USA equal
to 1.5% per month or the highest rate permitted by applicable law,
whichever is the lower rate,
such interest to be calculated on a daily basis.
Although Abaca USA will take all reasonable steps to ensure the accuracy and
timely provision of the Abaca USA Material, neither Abaca USA nor
any of its licensors warrants that the Abaca USA Material
(including without limitation the captions and metadata to the
Images, Footage and Features) will be free from error or
computer viruses or similar destructive or contaminating code
or, unless expressly agreed otherwise in writing, that specific
Images, Footage or Features will be available.
USA does not accept any liability for failures or breakdowns in network
connections and/or end-to-end connectivity across the internet
and/or performance problems experienced on any internet or other
networks outside of Abaca USA's direct control.
This Site is provided for your use on an "as is," "as available"
basis. NO CONDITIONS, WARRANTIES OR OTHER TERMS (EXPRESS OR IMPLIED,
INCLUDING ANY IMPLIED warranty
of merchantability or fitness for a particular purpose, TITLE
and non-infringement to the fullest extent permitted by law)
APPLY TO A LICENSE OR TO THE ABACA USA MATERIAL EXCEPT TO THE
EXTENT THAT THEY ARE EXPRESSLY SET FORTH IN A LICENSE AND/OR THESE
TERMS AND CONDITIONS.
UNDER THE INDEMNITY IN CLAUSE 3.6
OF THESE TERMS AND CONDITIONS, NEITHER PARTY SHALL BE LIABLE IN
CONNECTION WITH THE ABACA USA MATERIAL OR UNDER A LICENSE OR THESE
TERMS AND CONDITIONS FOR ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS
OF OR DAMAGE TO GOODWILL, LOSS OF CONTRACTS, LOSS OF CUSTOMERS OR
ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS (EVEN IF THE PARTY
CONCERNED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS),
PROVIDED THAT THIS EXCLUSION WILL NOT APPLY TO ANY LOSS OF REVENUE
OR PROFIT THAT WOULD OTHERWISE HAVE BEEN OBTAINED BY OR DUE TO
ABACA USA UNDER OR WITH RESPECT TO A LICENSE.
USA has told you to remove an Image or Footage or Feature from the
Customer's Service, Abaca USA will not be liable for any loss
arising from the continued publication of such Image or Footage or
Feature. You will provide reasonable assistance to Abaca USA to
mitigate any claim that may arise from your use of Abaca USA
under the indemnity in clause 3.6 of these Terms and Conditions,
each party's liability arising from or in connection with the
Abaca USA Material or a License and these Terms and Conditions with
respect to the party's acts or omissions in connection therewith
(and whether such liability arises due to breach of contract,
negligence or for any other reason) shall be limited, in relation
to all events or series of connected events occurring in any given
year, to (in addition to any sums properly payable under a License)
an amount equal to the total Charges payable by you to Abaca USA
for that year (and provided that if a series of connected events
spans more than one year, for the purposes of this clause they will
all be treated as having occurred in the year in which the first of
the series occurred).
in these Terms and Conditions shall limit either party's
liability: (a) for fraud, (b) for death or personal injury caused
by either party's negligence or that of its servants or agents,
or (c) in relation to any other liability which cannot be excluded
or limited by law.
Each party agrees and undertakes that it will keep confidential, will
not use for its own purposes and will not without the prior written
consent of the other party disclose to any third party (other than,
in the case of Abaca
USA, to its parent companies and any company in the PA Group) any
information concerning the business and affairs of the other
(including the terms (but not the fact) of any License) which may
become known to such party unless such information is public
knowledge other than as a result of a breach of this clause, has
been independently acquired from a third party without restriction
on disclosure, or is required by law or any regulatory body or for
the purposes of litigation by or against either party to be
disclosed. For the purposes of a License and these Terms and
Conditions, the "PA
shall mean PA Group Limited (company number 4197), a company
established under the laws of England, or any holding company
thereof and each subsidiary thereof (both "holding company"
and "subsidiary" as defined in the English Companies Act 2006).
8. Term and Termination
The rights granted to you by Abaca
USA in these Terms and Conditions and any License to use the Abaca
USA Material may be terminated immediately by either party giving
notice to the other if: (a) the other commits a material breach of
these Terms and Conditions or a License and, if such breach is
remediable, it is not remedied within 7 days of receipt of notice
requiring remedy; (b) the other ceases or threatens to cease its
operations; or (c) the other becomes insolvent or bankrupt or
suffers any insolvency or bankruptcy related event in any
Abaca USA expressly agrees otherwise in writing or by e-mail, on
termination of any License: (a) Abaca USA will not fulfill any
outstanding orders for Images or Footage or Features placed by you;
and (b) you must not exercise any rights granted to you which you
have not already exercised. Except as set forth in the preceding
sentence, termination of the rights granted to you by Abaca USA in
these Terms and Conditions and any License will be without
prejudice to any rights or liabilities of either party that have
accrued prior to such termination.
at [ADD LINK].
All of the terms that have been agreed between the parties in relation to
the supply and licensing of the Abaca USA Material are contained in
these Terms and Conditions and any License Abaca USA grants to you.
No other terms shall apply unless expressly agreed otherwise in
writing. You acknowledge that you have not relied on any
representation made by Abaca USA that has not been set out in these
Terms and Conditions and/or a License. No amendments to any
License shall be effective unless in writing and signed by an
authorized representative of each party. You acknowledge and agree
that Abaca USA maintains the right to update,
add or delete portions of, or otherwise modify these Terms and
Conditions at any time, and any such changes will become effective
immediately upon being posted on the Website unless otherwise
specified therein. Your continued use of the Website after these
Terms and Conditions have been amended shall be deemed to be your
continued acceptance of the Terms and Conditions, as amended.
party will be liable to the other for any failures, interruptions,
delays or other matters of a similar nature arising out of
circumstances beyond its reasonable control.
Any notices and other communications in connection with these Terms
and Conditions or any License shall be in writing and shall be
deemed to have been received by a party when actually received in
the case of hand delivery, or two (2) days after mailing by an
internationally recognized carrier such as FedEx to the address of
the relevant party as set forth in a License or such other address
as the relevant party has notified to the other party in writing
from time to time for this purpose.
Neither party shall assign, sub-contract, sub-license or otherwise transfer
its rights or obligations under this Agreement without the prior
written consent of the other party, not to be unreasonably withheld
or delayed, except
that: (a) Abaca USA may assign or transfer all or any of its rights
or obligations to any PA Group company; and (b) Abaca USA may
sub-contract the performance of its obligations provided that Abaca
USA's liability for the performance of its obligations shall not be
The failure or delay by either party to enforce at any time any one or
more of these terms or conditions shall not be a waiver of such
rights or any other rights.
This Agreement shall not confer upon any person other than the parties
hereto any rights or remedies hereunder.
If any provision of these Terms
and Conditions of any License shall be invalid, illegal or
unenforceable, it shall, to the extend possible, be modified in
such a manner as to be valid, legal or unenforceable but so as to
most nearly retain the intent of the parties, and if such
modification is not possible, such provision shall be severed from
this Agreement, and in other case the validity, legality and
enforceability of the remaining provisions should not in any way be
affected or impaired thereby.
These Terms and Conditions and any License shall be governed by and construed
in accordance with the laws of the State of New York without regard
to its rules concerning conflict of laws. The parties irrevocably
elect as the sole judicial forum for the adjudication of any
matters arising under or in connection with this Agreement and
consent to the jurisdiction of the federal and state courts of the
State of New York, except for matters for which injunctive relief
is sought, which shall be sought in the jurisdiction where such
relief is intended to apply.
THESE TERMS AND CONDITIONS WERE LAST UPDATED ON MAY 7, 2009.