Hi,
I'm new to the forum...
I'm trying to understand what difference the 10th
clause makes in
standard v. exclusive agreement
 
can anyone exprain to me???

thanx a lot!

10th clause in Non-Exclusive agreement:

Indemnity
a. You agree to indemnify, defend and hold iStockphoto and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Content (collectively, the �iStockphoto Parties�) harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any iStockphoto Party as a result of or in connection with: (i) any use or alleged use of the Site or provision of Content under your Member Name by any person, whether or not authorized by you; (ii) or resulting from any communication made or Content uploaded under your Member Name; (iii) any breach by you of this Agreement; or (iv) any claim threatened or asserted against any iStockphoto Party to the extent such claim is based upon a contention that any of the Content used within the scope of this Agreement and the Content License Agreement infringes any copyrights, trade secrets, trademarks, right of privacy or publicity, or other intellectual property rights of any third party.

b. iStockphoto reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with iStockphoto's defense of such claim.

10th clause in Exclusive agreement:

Indemnity
a. You agree to indemnify, defend and hold iStockphoto and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Exclusive Content (collectively, the "iStockphoto Parties") harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any iStockphoto Party as a result of or in connection with: (i) any use or alleged use of the Site or provision of Content under your Member Name by any person, whether or not authorized by you; (ii) or resulting from any communication made or Content uploaded under your Member Name; (iii) any breach by you of this Agreement; or (iv) any claim threatened or asserted against any iStockphoto Party to the extent such claim is based upon a contention that any of the Exclusive Content used within the scope of this Agreement and the Content License Agreement infringes any copyrights, trade secrets, trademarks, right of privacy, right of publicity or other intellectual or other property rights of any third party.

b. iStockphoto reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with iStockphoto's defense of such claim.

c. The Supplier agrees that iStockphoto shall have the right to determine whether and to what extent to proceed against a licensee or other third party (an "Infringer") for any violation of the Content License Agreement or alleged infringement of other rights of the Supplier. The Supplier hereby releases iStockphoto from any and all claims the Supplier might have, either directly or indirectly, arising out of or in connection with a determination by iStockphoto to proceed or not to proceed against any Infringer in any instance. iStockphoto hereby agrees that any monetary recovery it receives as a result of any legal or enforcement action taken against any such Infringer, to the extent such monies are intended to compensate iStockphoto for lost licensing fees or statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery ( including, without limitation, reasonable counsel and experts' fees and disbursements on a solicitor and client basis) incurred by or on behalf of iStockphoto in connection with such action, be divided between the Supplier and iStockphoto pursuant to the provisions of the Compensation section above. In the event iStockphoto elects not to proceed against an Infringer, the Supplier shall have the right to proceed against such Infringer for such license violation or infringing action. The Supplier hereby agrees that any monetary recovery it receives as a result of any legal action taken against any such Infringer, to the extent such monies are intended to compensate the Supplier for lost licensing fees or include statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable counsel and experts' fees and disbursements on a solicitor and client basis), be divided between the Supplier and iStockphoto pursuant to the provisions of the Compensation section above.

I'm not a lawyer, so do not base any decisions on my interpretations, please!

This is supposed to be the section that keeps them from getting in trouble if you violate someone else's copyright and, in part, outlines the actions that they make take on the behalf of a contributor to protect their copyright, etc. Part of the marketing for the exclusive program claims that you will have greater and more rigorous legal protection because of the fact that they will know the file in question was downloaded from their site and that it is in their interest to go after violators. (This breaks down a bit when you consider that many exclusives were once non-exclusives at other sites and may be selling the same work they once sold elsewhere.)

From the several accounts that I have heard, the legal protection has been non-existent in terms of seeking financial compensation, but in most cases the violator was pursued with cease and desist letters and the image(s) were removed from the web space at least. Other stories have been that they reported the violation and have never heard a word. One contributor found an illustration of hers being sold on a doggie apparel item on the Petco website. No extended license had been purchased, and in fact she did not even offer the option of an extended license for that image. This is a very large company and a high profile website. Yet, after nearly a year, the last I heard nothing has been settled and she did not receive a penny.

Also of note in this clause is that whatever financial compensation they do receive (if any) will have legal expenses deducted, and then they will take their customary percentage of the proceeds (i.e. 80% from non-exclusives). AND, if they decide NOT to pursue the matter, you are free to do it yourself BUT the same deal goes... they still get their percentage after the legal expenses are deducted.

(This is my interpretation, and I say again, I am NOT an attorney.)