PHOTOGRAPHY IMAGES LICENSING AGREEMENT (CLICKWRAP)
THIS PHOTOGRAPHY IMAGES LICENSING AGREEMENT (“AGREEMENT”) GOVERNS YOUR RIGHT TO USE ANY DIGITAL PHOTOGRAPHIC IMAGES (“IMAGES”) THAT YOU CAN ACCESS BY DOWNLOAD THROUGH THIS, ZENFOLIO (“LICENSOR”), WEBSITE. BY OBTAINING AN ONLINE ACCOUNT FROM LICENSOR, BY CLICKING TO AGREE TO THE BELOW TERMS AND CONDITIONS, BY PAYING A LICENSING FEE, AND BY ACCESSING ANY DIGITAL PHOTOGRAPHIC IMAGES FROM THIS WEBSITE, YOU AGREE TO BE BOUND BY AND COMPLY WITH ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT.
IF YOU WISH TO LICENSE THE USE OF ANY IMAGES FROM THIS WEBSITE, PLEASE SCROLL DOWN, READ, AND, IF YOU AGREE, ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO OR DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU WILL NOT BE GRANTED ACCESS TO AND ALLOWED TO USE LICENSOR’S IMAGES.
This Agreement is entered into by and between Licensor and You (“You”, “Your”, “Licensee”) (together, "Parties").
A. Licensor owns all proprietary rights, including copyright, in Images of various sports competition events, including from the Sochi 2014 Winter Olympic Games. Licensor has the exclusive right to license to others rights associated with the Images.
B. Licensee, a news media or sports organization or its representative, is seeking to license and purchase Images for use in its news, sports, and related coverage, but not in any manner or purpose which is commercial or related (“Editorial Purpose”). Licensee or Licensee’s Principal shall be the only end users of the Images.
C. Licensor agrees to grant and Licensee seeks to obtain a license authorizing the Licensee’s use of Images in accordance with terms and conditions of this Agreement.
THE PARTIES THEREFORE AGREE AS FOLLOWS:
1. Definitions & Explanations of “You” and “Licensee”.
A. In this Agreement "You" and “Licensee” shall mean:
i. An individual, organization, or company listed as the registrant of the account through which Licensor’s website access privileges have been granted ("User"); and
ii. User's employer, client, or another third party ("Principal"), if User is registered on behalf of a Principal.
B. If User is acting and is authorized to act on behalf of a Principal, then (i) the rights granted by this Agreement shall be solely to the benefit of the Principal and to the exclusion of User; (ii) User represents and warrants that User has the authority to bind, and has bound, such Principal to the terms and conditions of this Agreement; and (iii) User agrees to be jointly and severally liable for any breach of the terms and conditions of this Agreement by Principal.
2. Grant of License.
A. Scope. Subject to the terms and conditions in this Agreement, Licensor grants to You during the Term (as defined in Subsection G of this Section 2) a limited, non-exclusive, revocable, non-sublicensable, non-transferable license and right to publically display and distribute (“Use”) the Images in Territory as follows:
i. the Use shall be restricted to news services, including any print, electronic, or online media, (“Medium”) for Editorial Purposes only; and
ii. the Use shall be restricted to a one-time Use of each Image only.
B. Medium. The authorized Medium for Use of Images shall be any print or electronic news or sports media, including newspapers, magazines, other editorial news periodicals, newsletters, websites, and blogs. However, the authorized Medium shall not include any social media or sharing websites and portals.
C. Reservation of Rights. All rights not expressly granted to You within this Agreement are reserved to the Licensor, including but not limited to, the sole and exclusive ownership, assignment, modification, creation of derivative works, and other rights.
D. Unauthorized Use:
i. You shall not post Images online in a downloadable format, sell, distribute, assign, republish, redisplay, reproduce, perform, create derivative works, otherwise license, or repurpose the Images in any way without acquiring prior written permission of Licensor and paying additional licensing fee as determined by Licensor at that time.
ii. You shall not disable, interfere, modify, or otherwise circumvent any and all Licensor’s copyright protection, management, security, and identification measures, including electronic tracking, encryption, and digital watermarking.
iii. You shall not use Images for any illegal purpose in any jurisdiction, including where it would violate defamation, libel, commercial disparagement, privacy, trade restrictions and other laws, regulations, or community standards. You shall not use Images in any manner that displays, communicates, promotes, or advocates political, immoral, or pornographic activities.
iv. You agree to take all reasonable efforts to prevent third parties from unauthorized use, access, infringement, and misappropriation of Images. If You learn of any unauthorized use described in this Subsection D, You shall immediately inform Licensor about the unauthorized use.
v. If You desire any change in the scope of the license under this Agreement, You shall contact Licensor for information on additional terms and conditions at [email protected]oto.net
E. No Use for Commercial Purposes. Yours or anyone else’s use of Images for advertising or any other commercial purpose, in any medium or in any manner whatsoever, is strictly prohibited.
F. Territory. You shall have a right to Use Images Worldwide.
G. Term & Duration. The license granted under this Agreement shall be a term license, commencing on the date of Your acceptance of this Agreement, completed by accepting the terms and conditions of this Agreement below, followed by a payment for and download of Images (“Effective Date”), and lasting for a period of one year (“Term”). This Agreement and the license under it shall automatically expire exactly one year after the Effective Date (“Expiration Date”), unless Licensee notifies Licensor in writing at least 15 days prior to the Expiration Date of a desire to extend this Agreement or relicense Images, and the Parties agree to the new or extended terms and conditions in writing.
H. Description of Images. Images shall be still digital photographs of various sports events and competitions, including curling, at the Sochi 2014 Winter Olympic Games (“Olympics”) and other locations worldwide, capturing competition, athletes, spectators, and general surroundings of the competition venues, places, and background.
I. Formatting. There shall be no restrictions on formatting of Images, provided that You do not violate the terms and conditions of this Agreement and do not change or affect Editorial Purpose of Use and Meaning of Images, or create derivative works. Licensor shall retain all title, rights, and interests in all reformatted Images. “Meaning” in this Agreement and this provision shall mean the subject matter of Olympic sports, competition, and surroundings.
J. Your Acknowledgement. You accept and agree to the terms and conditions of this Agreement, including this Grant of License provision and limitations within, including that You have no right to use, copy, publish, display, or otherwise use any Image except as expressly authorized in this Section 2.
A. Licensor. Licensor may terminate this Agreement and the license granted to You under it with immediate effect, without incurring any additional obligation, liability, or penalty:
i. at any time and for no reason at all, upon Notice to You; and
ii. in the event of any breach or violation of any term or condition of this Agreement by You, upon Notice to You.
B. Licensee. You may terminate this Agreement only in an event of (i) Licensor’s material breach of a material term of this Agreement, and (ii) Licensor’s failure to cure such breach within 30 days after the material breach. The sole remedy available to You shall be the return of Licensing Fee.
C. Licensee’s Obligations after Termination & Expiration. After Termination or Expiration of this Agreement and the license granted hereunder, You shall destroy all copies, either electronic or print, of Images in Your possession and control, including but not limited to a cloud or other virtual storage.
D. Survival. The rights and obligations of the Parties set forth in this Section 3 and the remainder of this Agreement, and any right, obligation, or required performance of the Parties in this Agreement which, by its express terms, nature, and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
4. Attribution & Copyright Notice.
A. Attribution. You shall properly attribute Licensor on or just below Images for the Use of every Image in the following manner: Photo By Rich Harmer
B. Copyright Notice. You shall display the following copyright notice when using Images under the terms and conditions of this Agreement: © 2014 Rich Harmer.
5. Licensing Fee.
You agree and shall pay a one-time licensing fee to Licensor of, or equivalent to, US $35 / of the amount as stated on this website before or at the checkout (“Licensing Fee”) for the license of a single Image Use under the terms and conditions of this Agreement.
You shall pay the Licensing Fee upon accepting the terms and conditions of this Agreement. If You desire to use Images beyond the scope of the license under this Agreement, Licensor may renew or extend the terms and conditions of the license under this Agreement subject to additional terms and fees, if any.
A. Licensor’s Representations. Licensor represents that it has permission to take Images at the Olympics from the IOC.
B. Mutual Representations and Warranties. Each party represents and warrants to the other party that:
i. it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering;
ii. it has, and throughout the Term shall retain, the full right, power and authority to enter into this Agreement and to perform its obligations hereunder;
iii. the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate or organizational action of the party; and
iv. when executed and delivered by such party, this Agreement shall constitute the legal, valid and binding obligation of that party, enforceable against that party in accordance with its terms.
C. GENERAL DISCLAIMER. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE LICENSOR OFFERS AND PROVIDES THE IMAGES ON AN “AS-IS” AND “AS-AVAILABLE” BASIS, AND EXPRESSLY DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES OF ANY KIND CONCERNING THE IMAGES, A SUBJECT MATTER DEPICTED IN THE IMAGES, ANY TEXT PROVIDED IN ANY METADATA AND CONTENT ASSOCIATED WITH THE IMAGES, INCLUDING THOSE AVAILABLE ON LICENSOR’S WEBSITE, DROPBOX AND EMAIL ACCOUNTS, AND COMMUNICATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER. THIS INCLUDES, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, RELIABILITY, OR THE PRESENCE OR ABSENCE OF ERRORS, WHETHER OR NOT KNOWN OR DISCOVERABLE.
D. Disclaimer of Subject Matter in Images. Licensor shall not and did not obtain any releases, licenses, clearances, or permits for the use of any content in the Images, including as it relates to anyone’s right of publicity. All Images are taken and licenses are granted under this Agreement pursuant to the IOC permission or other agreements with governing sports authorities or associations. You shall Use the Images, even if for the Editorial Use, according to the terms and conditions of this Agreement, only if the content in the Images depicting names, individuals, trademarks or service marks, logos, and copyrighted materials falls under “fair use” exception, as defined under the U.S. copyright laws, even if You use the Images in a non-U.S. jurisdiction. It shall be Your sole responsibility to determine whether Your use of the Images complies with the “fair use” or similar doctrine in Your jurisdiction.
7. Limitations of Liability.
To the fullest extent permitted by Law, Licensor shall not be liable to You for any injury or damage to or loss of use, goodwill, reputation, business production, revenues, profits, anticipated profits, contracts, or opportunities (irrespective of how these are classified as damages), or for any consequential, compensatory, incidental, direct, indirect, exemplary, special, punitive, or enhanced damages whether arising out of or related to breach of contract, tort (including negligence), or otherwise, including the entry into, performance, or breach of this Agreement, and Your use of Images and subject matter depicted in the Images, regardless of whether such damage was foreseeable and whether or not You have been advised of the possibility of such damages. In any case, Licensor’s maximum liability to You shall not exceed the aggregate amount actually paid by You to Licensor under this Agreement.
A. You shall indemnify, defend, and hold harmless Licensor and its officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, judgments, actions, proceedings, suits, liabilities, settlements, losses, damages, fines, interest, award, costs, and expenses, including attorneys' fees and disbursements, arising from or relating to:
i. any violation or breach by You of Your representations, warranties, or other terms and conditions of this Agreement, including Your use, misuse, or modification of Images and the subject matter in the Images;
ii. any violation or misappropriation by You of Licensor’s or a third party’s intellectual property rights or other rights, including privacy and publicity; or
iii. Your negligence or willful misconduct relating to the use of Images and this Agreement (any of the above, “Action”).
B. Indemnification Procedure. You shall immediately notify Licensor in writing of an infringement of Images if You become aware of any, including alleged infringement of Images. You shall promptly notify Licensor in writing of any Action and cooperate with Licensor at Your sole cost and expense. You shall immediately take control of the defense and investigation of the Action and shall employ counsel reasonably acceptable to Licensor to handle and defend the same, at Your sole cost and expense. You shall not settle any Action in a manner that adversely affects the rights of Licensor without Licensor's prior written consent. Licensor’s failure to perform any obligations under this Section 8 shall not relieve You of Your obligation under this Section 8. Licensor may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
9. Liquidated Damages.
If You violate this Agreement, including after its termination or expiration, by using Images beyond the scope of the license granted under it, or otherwise misusing Images, You shall pay an amount in the US currency equal to 10 times the Licensor’s Licensing Fee, to be calculated on per Image basis (“Liquidated Damages”). The Parties agree that Liquidated Damages are a reasonable forecast of just compensation for Your breach, it is difficult to ascertain the harm to Licensor at the time of the contract formation, and there may be non-feasible to get an alternative adequate remedy. Licensor shall preserve all other rights and remedies available to Licensor.
10. Relationship of the Parties.
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
11. General Provisions.
A. Entire Agreement.
This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
C. Amendment & Modification.
This Agreement may be amended, modified, or supplemented in writing by Licensor at any time.
No waiver by Licensor of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by it. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver of it; nor shall any single or partial exercise of any right, remedy, power, or privilege preclude any other or further exercise of it or the exercise of any other right, remedy, power, or privilege.
All notices, requests, consents, claims, demands, waivers, inquiries, and other communications under or relating to this Agreement (each, a "Notice") shall be in writing and addressed to the Parties in the following manner and at the following addresses (or to such other address, including email address, that may be designated by the receiving party from time to time in accordance with this section):
i. If to Licensor, the following email address: [email protected]
ii. If to You, the email or physical address as provided by You in Your account on Licensor’s website.
All Notices shall be delivered by personal delivery, nationally or internationally recognized overnight courier (with all fees pre-paid), facsimile, or e-mail (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid).
You may not and shall not assign or otherwise transfer any of Your rights or delegate any of Your obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent. Any purported assignment, transfer, or delegation in violation of this Section shall be null and void. No assignment, transfer, or delegation shall relieve You of any of Your obligations under this Agreement.
G. Governing Law; Submission to Jurisdiction; Mediation.
i. This Agreement and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of Minnesota, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Minnesota and the US federal laws. The application of the UN Convention on Contract for the International Sale of Goods is expressly disclaimed.
ii. Any legal suit, action, or proceeding by You arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Minnesota in each case located in the County of Hennepin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. However, Licensor shall have the right to bring any legal or equitable action or proceeding before any U.S. or non-U.S. court of competent jurisdiction to enforce the terms and conditions of this Agreement. Service of process, summons, notice or other document by mail to Licensee’s address shall be effective service of process for any suit, action, or other proceeding brought in any such court.
iii. All disputes arising out of or related to this Agreement or the licenses granted hereunder shall be subjected to a non-binding mediation if both Parties agree in writing.
H. Waiver of Jury Trial.
Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
I. Cumulative Remedies.
The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
J. Equitable Remedies.
The Parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with its terms and conditions and that Licensor shall be entitled to equitable relief, including injunctive relief, or specific performance, in addition to any other remedy to which it is entitled at law or in equity.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
For purposes of this Agreement, (a) the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole.