VISUALS UNLIMITED ROYALTY-FREE LICENSE AGREEMENT
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This license agreement ("Agreement") is between you ("Licensee"), and VISUALS UNLIMITED and governs your use of Licensor's Images. YOUR PURCHASE OR USE OF ANY IMAGE SIGNIFIES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS, RETURN THE IMAGE (S) UNUSED FOR A FULL REFUND.
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1. DEFINITIONS
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1.1
| Invoice -
the computer generated or pre-printed standard form provided by Visuals Unlimited that includes: the Licensed Material selected (may refer to attached list of Licensed Material), any limitations on the Royalty Free license granted, in addition to what is specified herein. Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
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1.2
| Licensed Material -
any still image, visual representation generated optically, electronically, digitally or by any other means. This includes any negatives, transparencies, prints, original digital files or any reproductions thereof, or any other product protected by copyright, trademark, patent or other intellectual property right which is licensed by Visuals Unlimited under the terms of this Agreement. Any reference to the Licensed Material in this Agreement shall be to each individual item within the Licensed Material, and to the Licensed Material as a whole.
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1.3
| Licensee -
person or entity purchasing a license hereunder or, if there is a separate Purchaser, the person or entity specifically designated as Licensee during the purchase process and set forth as such in the Invoice.
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1.4
| Purchaser -
person or entity purchasing the license hereunder on behalf of a third party Licensee.
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1.5
| Reproduction/reproduce -
any form of copying or publication of the whole or part of the Licensed Material, by any medium, by whatever means, and alteration, distortion, cropping of manipulation of the whole or any part of the Licensed Material and the creation of any derivative work from the Licensed Material.
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1.6
| User -
any employee, or subcontractor of Licensee who; a) downloads, manipulates, modifies, edits or saves the digital file containing the Licensed Material; b) is otherwise directly involved in the creative process utilizing the Licensed Material; c) incorporates the Licensed Material in any derivative work.
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2. License/Grant of Rights
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2.1
| Subject to the terms of this license agreement:
Visuals Unlimited grants to Licensee a non-exclusive, non-sublicensable, non-transferable, perpetual, worldwide, right to reproduce, transmit and display, in whole or in part, Visuals Unlimited's Royalty Free Licensed Material, as identified in the Invoice, an unlimited number of times, in any and all media for all purposes other than those uses prohibited by Section 4 of the Agreement. Visuals Unlimited represents that it has the right to grant the license herein. All other rights to the Licensed Material, and accompanying materials (if applicable), including without limitation, copyright and all other rights, are retained by Visuals Unlimited.
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2.2
| Licensee may store the Licensed Material in a digital library or similar, to allow the Licensed Material to be viewed by clients and employees of Licensee, so long as there are no more than ten (10) Users (including part-time and freelance employees, subcontractors or agents). Additional seat or User licenses must be purchased if there are more than 10 Users, and licenses must be purchased before that use by the additional Users begins.
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2.3
| Licensed Material may be reproduced by subcontractors of Licensee for preparation of final product, so long as those subcontractors agree to abide by the provisions of this Agreement.
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3. Permitted Uses
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- Any print media, including advertising and promotional materials, editorial publications and consumer merchandise;
- Any Internet, intranet, Online or web-based media provided the resolution of the images does not exceed 72dpi;
- Broadcast and theatrical exhibitions;
- Products intended for resale; provided these products are not intended to allow the re-distribution or re-use of the Licensed Material; and
- Additional uses approved in writing by Visuals Unlimited.
Licensee may alter, crop, modify or adapt the Licensed Material in connection with the above permitted uses. Licensee may make a back-up copy of the Licensed Material for internal back-up purposes provided Visuals Unlimited’s copyright and any image identifying information is retained with the file.
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4. Restrictions of Use
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4.1
| Licensee may not sublicense, sell, assign, convey or transfer this Agreement or any of its rights under this Agreement.
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4.2
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Licensee may not (a)sell, license or distribute its final product in such a way that permits Licensee's end users to extract or access the Licensed Material as a stand-alone file,(b) make the Licensed Material, separate from the end product into which it is incorporated, available and accessible in any medium by persons other than authorized Users (c) use or display Licensed Material on websites or any other medium that is meant to induce, or involve the sale, license or other distribution of "on demand" products, including, without limitation, mugs, postcards, calendars, posters and other items or (d) include Licensed Material in any electronic template intended to be reproduced by third parties on electronic or printed products.
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4.3
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Licensee may not incorporate the Licensed Material into a logo, trademark or service mark.
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4.4
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Licensee may not distribute post or upload the Licensed Material online in a downloadable format.
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4.5
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Licensee may not use any of the Licensed Material, in part or in whole, in a pornographic, defamatory, libelous or otherwise illegal manner, whether directly or in context or juxtaposition with other materials.
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4.6
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Licensee may not falsely represent that Licensee is the original creator of a work that is a stand-alone pictorial, sculptural or graphic work, or motion picture or other visual work that derives a substantial part of its artistic components from the Licensed Material.
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4.7
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Licensee may not modify, reconfigure or repurpose the Licensed Material for use in any mobile-directed sites or mobile applications that are created specifically for viewing of Licensed Material on mobile devices, without obtaining the prior written consent of Visuals Unlimited.
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4.8
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If Licensed Material is reproduced in an editorial manner, Licensee must include the credit line adjacent to the Licensed Material: Photographer’s name/Collection Name/Visuals Unlimited.
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5. Product Endorsement or Sensitive Use Disclaimer
If any Licensed Material featuring a model is used in a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service, or if the depiction of the model is used in connection with a subject that would be unflattering, embarrassing or unduly controversial to a reasonable person, Licensee must accompany each such use with a statement that indicates that the person is a model and the Licensed Material is being used for illustrative purposes only.
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6. Releases
Model releases are available for Licensed Material containing models upon request. Names are removed to protect the privacy of the model. Other than model releases for recognizable persons, Visuals Unlimited grants no rights and makes no warranties with regard to the use of names, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Licensed Material, and Licensee must satisfy itself that all the necessary rights or consents regarding any of the above, as may be required for reproduction, have been obtained.
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7. Warranties
Visuals Unlimited warrants that: a) it has all necessary rights and authority to enter into and perform this Agreement; b) the Licensed Material to be free from defects in material and workmanship for 30 days from delivery. The sole and exclusive remedy for a breach of the foregoing warranty is the replacement of the Licensed Material; c) Licensee’s use of the Licensed Material, in it's original form, when used in accordance with this Agreement, will not infringe on any moral right, trademark, copyright, or other intellectual property right and will not violate any right of privacy or right of publicity; d) All necessary property and/or model releases have been obtained. Visuals Unlimited makes no representations or warranties as to whether any additional fees or payments may be due to any person depicted in Licensed Material pursuant to the requirements of any applicable trade union, and Licensee shall be solely responsible for any such additional fees or payments to such trade union.
VISUALS UNLIMITED MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING, THE LICENSED MATERIAL OR ITS DELIVERY SYSTEMS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. VISUALS UNLIMITED SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF LICENSEE'S USE OF THE IMAGES, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES.
Licensee may have additional rights under state law.
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8. Indemnification
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8.1
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Provided that Licensed Material is used only in accordance with this Agreement and Licensee is not otherwise in breach of this Agreement, and as Licensee’s sole and exclusive remedy for any alleged or actual breach of the representations and warranties set forth in Section 8 above, Visuals Unlimited shall defend, indemnify and hold Licensee and its parent, subsidiaries and commonly owned or controlled affiliates and their respective directors, officers and employees harmless from all damages (excluding punitive damages not directly attributable to acts of Visuals Unlimited), expenses and liabilities (including reasonable attorney's fees and permitted and authorized costs), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that Visuals Unlimited is in breach of its warranties set forth in Section 8 above. The foregoing states Visuals Unlimited’s entire indemnification obligation under this Agreement.
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8.2
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Licensee shall indemnify, defend and hold Visuals Unlimited and their respective directors, officers and employees harmless from all damages (excluding punitive damages not directly attributable to acts of Licensee), liabilities and expenses, (including reasonable attorney’s fees and permitted and authorized costs), arising out of or as a result of claims by third parties relating to Licensee's use of any Licensed Material that is outside the scope of this Agreement or any other actual or alleged breach by Licensee of this Agreement.
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8.3
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The party seeking indemnification pursuant to this Section 9 shall notify promptly the other party of such claim. At indemnifying party's option, indemnifying party may assume the handling, settlement or defense of any claim or litigation, in which event indemnified party shall cooperate in the defense of any such claim or litigation. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. The indemnifying party will not be liable for legal fees or other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.
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9. Condition of Licensed Material
Licensee should examine all Licensed Material for possible defects (digital or otherwise) before sending any Licensed Material for Reproduction. Without prejudice to Section 8b), Visuals Unlimited shall not be liable for any loss or damaged suffered by Licensee or any third party, directly or indirectly, arising from any alleged or actual defect in any Licensed Material or its caption, or in any way from its Reproduction.
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10. Payment Terms
No rights to use the Image(s) are granted until the invoice relating to the Image(s) is paid in full. A service charge of two percent (2%) per month, or such lesser amount allowed by law, will be charged thereafter on any unpaid balance. And claims for adjustment of terms must be made to COMPANY within five (5) days of the receipt of the invoice. Visuals Unlimited also reserves the right, in its sole discretion, to revoke the license if payment is not made in full, on time.
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11. Termination
The license contained in this Agreement will terminate automatically without notice from Visuals Unlimited if Licensee fails to comply with any provision of this Agreement. Upon termination, Licensee must immediately (i) stop using the Licensed Material, (ii) destroy or, upon the request of Visuals Unlimited, return the Licensed Material to Visuals Unlimited, and (iii) delete or remove the Licensed Material from Licensee's premises, computer systems and storage (electronic or physical).
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12. Revocation
Licensor reserves the right to revoke the license to use any Licensed Material for good cause and elect to replace such Licensed Material with alternative Licensed Material. Upon notice of any revocation of a license for any Licensed Material, Licensee shall immediately cease using such Licensed Material, shall take all reasonable steps to discontinue use of the replaced Licensed Material in products that already exist and shall inform all end-users and clients of same.
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13. Unauthorized Use
Use of the Licensed Material, in any manner not expressly authorized by this Agreement of in breach of a term of this Agreement constitutes copyright infringement, entitling Visuals Unlimited to exercise all rights and remedies available under copyright laws around the world. Licensee shall be responsible for any damages as a result of any such copyright infringement, including any claims by a third party. In addition, and without prejudice to Visuals Unlimited’s other remedies under this Agreement, Visuals Unlimited reserves the right to charge and Licensee agrees to pay a fee equal to five (5) times Visuals Unlimited’s standard license fee for use of the Licensed Material.
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14. Electronic Storage
Licensee must, for all Licensed Material that Licensee takes delivery of in electronic form, retain the copyright symbol, name of Visuals Unlimited, the Licensed Material’s identification number and any other information as may be embedded in the electronic file containing the original Licensed Material that is stored on Licensee’s computers. Licensee shall maintain a firewall to safeguard against unauthorized third-arty access to the Licensed Material.
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15. Withdrawal
Upon notice from Visuals Unlimited, or upon Licensee’s knowledge that any Licensed Material is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which Visuals Unlimited may be liable herein, or if Visuals Unlimited withdraws any Licensed Material for any good reason, Licensee will physically remove the licensed Material from its premises, computer systems, storage (electronic or physical) and, if possible, cease future use at its own expense. Visuals Unlimited shall provide Licensee with comparable Licensed Material (comparability will be determined by Visuals Unlimited in its reasonable judgment) free of charge, but subject to the other terms and conditions of this Agreement.
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16. Audit
Licensee shall, upon reasonable notice, provide sample copies of Reproductions containing Licensed Material to Visuals Unlimited. Upon reasonable notice, Visuals Unlimited may, at its discretion, either through its employees or through a third party, audit Licensee’s records directly related to this Agreement and use of Licensed Material in order to verify compliance with the terms of this Agreement. Where Visuals Unlimited reasonably believes that Licensed Material is being used by more than the authorized number of Users, or that Licensed Material is being used outside the scope of the license granted under this Agreement, Licensee shall, at Visuals Unlimiteds' request, provide a certificate of compliance signed by an officer of Licensee in a form to be approved by Visuals Unlimited.
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17. Severability
If one or more of the provisions contained in the Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be reformed only to the extent to make it enforceable.
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18. Governing Law
This Agreement will be governed in all respects by the laws of the State of New Hampshire, USA, without reference to its laws relating to conflicts of law. Licensee agrees that any disputes arising from this Agreement or its enforceability shall be settled by binding arbitration. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. Notwithstanding the foregoing, Visuals Unlimited shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against Licensee in the event that, in the opinion of Visuals Unlimited, such action is necessary or desirable.
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19. Waiver
No action of Visuals Unlimited, other than express written waiver, may be construed as a waiver of any provision of this Agreement.
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20. Entire Contract
This contract contains all the terms of the license agreement and no terms or conditions may be added or deleted unless made in writing and signed by an authorized representative of both parties.
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