This Agreement is collectively governed by: 1) the following terms and conditions, 2) the Content-Specific Invoice (“Invoice”), and 3) the Content Specific Online Webpage(s) located at www.davidrollawright.com. (“Content Specific Web Page”) (“collectively, the “Agreement”). This Agreement governs access and use of all material, images and footage (collectively, “Content”) available from David Rolla Wright and/or IDU Incorporated (“collectively, the “Licensors”). By obtaining, using or paying for any Content from Licensor, licensee agrees to be bound by and comply with all of the terms of the Agreement.
- Definitions: All capitalized terms shall have the meaning set forth herein (entitled “Defined Terms”) and elsewhere in these terms and conditions.
(a) “Comps” means Content licensed solely for Licensee’s evaluation to determine whether the Content is appropriate for Licensee’s intended End Use.
(b) “End Use” means the final work product created with the Content as authorized hereunder and excluding Comp uses.
(c) “License” means the permission granted by Licensor to Licensee to use the Content as specified in and subject to the terms and conditions of the Agreement
(d) “Material”, “Images” and “Footage” mean all material, images and footage clips, respectively, and related informational materials in any medium obtained from or furnished by Licensor hereunder, including without limitation related metadata, text, captions, or information.
(e) “Royalty-Free Content” means Content licensed for an unlimited number of permitted uses for a one-time flat fee and expressly designated as “Royalty-Free” or “RF” by
- Parties: This Agreement is binding between David Rolla Wright and/or IDU Incorporated (“Licensor”) and Licensee. “Licensee” means: (a) the individual listed as the registrant of the Licensor account through which the License is granted (“Registrant”), and (b) if Registrant is entering into this Agreement for the benefit of, or as an agent on behalf of, Registrant’s employer (“Employer”) or a third party (“Principal”), then such Employer or Principal. If Registrant is entering into this Agreement for the benefit of his/her Employer, or as an agent on behalf of Principal, then Registrant (x) represents and warrants that such Employer or Principal has authorized Registrant to enter into this Agreement, that the Licenses granted hereunder are on such Employer’s or Principal’s behalf, that such Employer or Principal has agreed to be bound hereby; (y) the Content and End Use is solely for the benefit of Employer or Principal, and that Registrant will not use the Content or End Use for the benefit of any other person or entity without entering into a separate License with Licensor and (z) in the case of an agent/Principal relationship, Registrant shall be jointly and severally liable for any breach of the terms of this Agreement by Principal.
(a) Generally: Any and all Licenses granted by Licensor are conditioned upon (i) Licensee’s compliance with all material provisions of this Agreement, including without limitation Licensor’s receipt of full payment of the applicable Invoice, and (ii) Licensee entering into this Agreement without having received notice of unauthorized use of the Content. Licensor reserves all rights not specifically granted in this Agreement.
(b) Who May Use the Content: The Licenses granted are limited and Licensee may not sell, rent, loan, give, sublicense or otherwise transfer the Content or any right to use the Content except as may otherwise be specifically stated herein or on the applicable Invoice, and insofar as the Content has been incorporated into the permitted End Use. Only Licensee may use the Content and the End Use must be solely for Licensee’s own use. Licensee’s employees and contractors (if any) may use the Content as necessary to create the End Use as provided herein, provided that each such employee or contractor has agreed to comply with the terms hereof, and further provided that Licensee remains liable for any breach of the terms of this Agreement by such employee(s) or contractor(s).
(c) License Types:
as specified on the applicable Invoice.
(i) Royalty-Free Content: Subject to the terms and conditions of this Agreement, Licensor grants Licensee a limited, non-exclusive, perpetual and worldwide right to use the Royalty-Free Content (except as may otherwise be specified in the applicable Content Specific Web Page(s) or Invoice) to create and exploit any End Use in any and all media now known or hereafter devised, for any purpose not otherwise prohibited under this Agreement. Unless otherwise specified on the Invoice, the rights granted under this Paragraph include the right to make the Royalty-Free Content available to two (2) separate individuals for the sole purpose of manipulating or otherwise using the Royalty-Free Content to create the End Use according to the terms provided herein.
(ii) Comps: Subject to the terms and conditions of this Agreement, Licensor grants Licensee the right to use the Content solely for Licensee’s evaluation to determine whether Licensee intends to obtain an applicable License for the Content. No other use is allowed. Unless otherwise stated in the applicable Invoice, the Comps License automatically expires sixty (60) days from the date of download or receipt (“Comps Term”). Licensee may not store, copy, distribute, publish, display or otherwise use in any way the Content upon the expiration of the Comps Term without obtaining an appropriate License for that Content. If Licensee does
not obtain such a License, upon expiration of the Comps Term, Licensee must destroy all copies of the Content. Licensor reserves the right to charge Licensee an administrative fee if Licensee fails to confirm to its destruction of such Content within 10 days of the expiration of the Comps Term.
- Ownership and Intellectual Property:
Licensor retains all right, title, and interest in and to all of the copyrights and any other proprietary rights in the Content. No rights in any Content are granted except the Licenses specified in this Agreement. Any right, title or interest arising in any compilation or derivative work created using any Content shall not entitle Licensee to use any Content except as permitted hereunder.
- Releases and Clearances: Content may contain listed restrictions (either on the Invoice or Content Specific Web Page), including, without limitation, restrictions as to time, manner, industry and territory of use, and required pre-approval by depicted people or their representatives. Subject matter depicted in the Content may be subject to copyrights, trademarks, rights of publicity, moral rights, property rights or other rights belonging to another party. Except as may be specifically stated in the Invoice or the Content Specific Web Page applicable to the licensed Content, the rights Licensor grants to Licensee do not include a license to, and Licensor makes no representations or warranties that it owns or licenses any rights related to or in any persons, places, property (real, personal or of any other kind) or subject matter depicted in any Content. Licensee is solely responsible for determining whether Licensee’s use of any Content requires the consent of any other party or the license of any additional rights. Licensee is solely responsible for obtaining any and all releases and clearances as may be required, including without limitation (a) rights from any representative guild, union, professional organization, or other authorized representative; and (b) if any music is included in the Content, master use, synchronization and performance licenses from the copyright proprietors of the applicable master recording(s) and composition(s) and such other persons, firms or associations, societies or corporations as may own or control the performing or other rights. Licensee is responsible for consulting with its own legal counsel to determine whether additional rights are needed for the intended End Use. Licensee may not rely on any statements made by any Licensor employee or representative other than those made in the Agreement.
- Limited Warranty and Disclaimer:
(a) Licensor warrants that:
(i) the Content, when used as authorized under this Agreement will not infringe the rights of the copyright holder of the Content,
(ii) it has sufficient rights to enter into this Agreement and grant the rights provided herein; and
(iii) the digital copy of the Content provided by Licensor will be free from defects in material and workmanship (but not visual artifacts inherent in the original Content). Ninety (90) days following delivery, Licensor will, as Licensee’s exclusive remedy for Licensee’s inability to use any Content as the result of such material and workmanship defects, provide a replacement of the digital copy of such Content or, in Licensor’s sole discretion, terminate the License and refund any fee actually paid by Licensee to Licensor, provided Licensee has not made any use the Content.
(b) Licensor makes no warranties, nor shall Licensor be liable, for any claims related to or arising from Licensee’s use of Content which:
(i) arise from any third party rights, including without limitation any copyright, trademark,
trade dress, personality right or right of privacy, depicted in the subject matter of the Content or as specified in Section 5 above;
(ii) but for Licensee’s modification of such Content or combination of such Content with other Content, products, text, content or materials, such claims would not have arose; or
(iii) arose after Licensor has otherwise notified Licensee not to use the applicable Content.
(c) While Licensor makes efforts to use accurate caption information, Licensor does not warrant that such information is accurate. Licensor provides Licensee with its online system on an “as is” basis without warranty of any kind, including warranty of continued access or availability or against interruption of service.
EXCEPT AS IS EXPRESSLY STATED HEREIN, LICENSOR, ON BEHALF OF ITSELF AND ITS CONTENT SOURCES MAKES NO OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY REGARDING ANY CONTENT, ITS ONLINE SYSTEMS, OR ANY RIGHTS OR LICENSES UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Liability: EXCEPT FOR ANY LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED, NEITHER LICENSOR NOR ANY SUCCESSOR, PREDECESSOR, PARENT, JOINT VENTURE, AFFILIATE, OFFICER, DIRECTOR, EMPLOYEE, CONTRACTOR, CONTENT SOURCE, AGENT OR SUBAGENT SHALL BE LIABLE TO LICENSEE OR ANY OTHER THIRD PARTY CLAIMING THROUGH LICENSEE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, STATUTORY OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR RELATING TO THIS AGREEMENT AND/OR LICENSEE’S USE OR INABILITY TO USE THE CONTENT, WHETHER FRAMED AS A BREACH OF WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, IN TORT, CONTRACT, FAILURE OF ESSENTIAL PURPOSE, OR OTHERWISE. IN NO EVENT SHALL LICENSOR OR ANY ITS SUBSIDIARIES’, SUCCESSORS’, PREDECESSORS’, PARENTS’, JOINT VENTURES’, AFFILIATES’, OFFICERS’, DIRECTORS’, EMPLOYEES’, CONTRACTORS’, CONTENT SOURCES’, AGENTS’ OR SUBAGENTS’ TOTAL AGGREGATE LIABILITY TO LICENSEE OR ANY THIRD PARTY CLAIMING THROUGH LICENSEE ARISING FROM THIS AGREEMENT, ITS TERMINATION OR EXPIRATION, AND/OR LICENSEE’S USE OF ANY CONTENT PROVIDED HEREUNDER, EXCEED $1,000. THE FOREGOING LIMITATIONS ARE APPLICABLE NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
- Licensee’s Indemnification of Licensor: Licensee agrees to indemnify and hold harmless Licensor and its Content sources, officers, directors and employees (collectively, the “Licensor Indemnified Parties”), from any and all loss or damage arising out of any claim by a third party based on (i) Licensee’s material breach of any terms, conditions or restrictions of this Agreement, (ii) to the extent that it gives rise to the claim, Licensee’s use or modification of any Content, or combination of any Content, with any text or other content, (iii) Licensee’s failure to obtain from third parties all permissions necessary to use the Content, and (iv) Content which Licensor has notified Licensee not to use (collectively, the “Licensor Claim”) by paying that portion of the final judgment (including reasonable outside attorneys’ fees and costs awarded, if any) entered against the Indemnified Parties by a court of competent jurisdiction on such Licensor Claim. Licensee shall have the right, but not the obligation to defend and control the defense of any such Licensor Claim and to choose counsel for such purpose, provided that the Licensor Indemnified Party may participate at its own cost and expense. Notwithstanding the preceding, Licensee shall have no obligation under this Section 9 if Licensor does not provide Licensee with prompt written notice of Licensor’s receipt of any Licensor Claim and such delay impairs Licensee’s ability to defend or its rights. Licensee will not agree to any stipulation, admission, or acknowledgment of any fault, guilt, wrongdoing or liability on the party of any Licensor Indemnified Party without prior written consent. Licensee will not settle any Licensor Claim on any Licensor Indemnified Party’s behalf or publicize any settlement without Licensor’s prior written consent.
- Alterations to Fine Art Content: Special ethical considerations apply to fine art Content. When using such Content, Licensee is solely responsible for, and shall indemnify Licensor for any claims related to or arising from any modifications to or alterations of the Content (except for standard color correction or minor cropping for space limitations) or to the caption information.
- Unauthorized End Uses: Content may not be used as a trademark or logo, for use as pornography, unlawful purpose or use, in a manner that defames any person, or violates any person’s right of privacy, publicity or moral rights, or infringes upon any copyright, trade name or trademark. Licensee does not acquire, and shall not claim, any rights in the Content itself apart from the End Use. Unauthorized use of Content may constitute infringement of copyright and other applicable rights and shall entitle Licensor to seek all rights and remedies under applicable copyright and other laws, including monetary damages against all users and beneficiaries of the use of such Content. Licensor in its sole discretion reserves the right to bill Licensee (and Licensee hereby agrees to pay) ten (10) times the license fee for any unauthorized use, or pursue any other fees, damages and penalties Licensor may be entitled to under this Agreement and applicable law. The foregoing is not a limiting statement of Licensor’s rights or remedies in connection with any unauthorized use of the Content or breach of the Agreement.
- Payment/Reporting: Licensee hereby agrees to and is required to pay Licensor for all Content that Licensee obtains, regardless of whether Licensee uses the Content unless cancelled pursuant to Section 13 below. Payment is due within thirty (30) days of the date the applicable Invoice is issued, or the date specified in the Invoice, whichever comes first. A late payment charge of one and one-half percent (1.5%) per month or the greatest amount allowed under applicable law may be added to any unpaid balance after thirty (30) days.
- Taxes: All amounts due for the licensing of Content are reflected before any Applicable Sales Tax, for which Licensee is solely responsible. Applicable Sales Tax means any sales tax, use tax, value added tax, goods & services tax or any other similar tax computed on an ad valorem basis. Licensor will add any Applicable Sales Tax to its invoice when required to do so.
(a) By Licensee: If Licensee cancels any License within seven (7) days from the date of the Invoice, Licensee will be charged a fifty (US$50) dollar transaction fee per item of Content. If the cancellation notice is received more than seven (7) days, but less than thirty (30) days after the Invoice date, a cancellation fee equal to fifty percent (50%) of the amount of the Invoice will be charged. After thirty (30) days, no cancellations will be accepted and Licensee is responsible for and must pay the full amount of the Invoice. For any cancellations, Licensee must also pay any and all applicable service charges, production fees, processing and handling fees and shipping fees related to the cancelled Invoice. All Licenses applicable to the cancellation shall immediate terminate upon cancellation and no End Use may be made of the applicable Content. All cancellations are final.
(b) By Licensor: If Licensee breaches any provision of this Agreement, and such breach remains uncured for fourteen (14) days after Licensee’s receipt of notice from Licensor of such breach, this Agreement and the License to the Content will automatically terminate. Upon any termination of this Agreement for uncured breach, neither Licensee nor any other person or entity covered by the license granted to Licensee under this Agreement shall have any further right to make any use of the Content or the End Use.
- Copies: At Licensor’s reasonable request, Licensee shall provide to Licensor free of charge one (1) copy of any End Use made of the Content as authorized hereunder to verify License compliance. In addition, upon consent by Licensor, Licensee hereby allows Licensor to use, without charge, Licensee’s End Use in displays and presentations for Licensor’s marketing purposes, solely to demonstrate how Licensee has used the Content.
- Storage of Content: In producing the End Use as authorized hereunder, Licensee shall limit access to the Content to those having a bona fide need to facilitate production or creation of any such authorized End Use. Upon termination and/or expiration of the License, Licensee agrees to cease use of all Content and shall promptly delete or destroy any digital copies.
- Protection of Content: If use of Content is permitted on the Internet, or any other online or interactive media, Licensee shall use commercially reasonable efforts to protect the Content to ensure that it cannot be copied.
- Credit Line and Copyright Notice: Receiving credit is a material aspect of the Agreement for Licensor. For commercial uses, Licensee agrees to include the credit described above when such crediting is customary and appropriate. In the case of Footage, Licensee shall provide copyright attributions to Licensor in the production, and on-screen credits as specified in the invoice, equal in all respects to any credit accorded to any other provider of comparable services.
- Trademarks: Except for credits as required above, neither party may use the other party’s trademarks or service marks without such party’s prior written consent.
- Choice of Law / Jurisdiction / Attorneys’ Fees: This Agreement, any claim, controversy or dispute arising under or related to this Agreement, the relationship of the parties and the interpretation and enforcement of the rights and duties of the parties will be governed by the laws of the State of New York, and by Titles 15, 17 and 35 of the U.S.C., as amended, and the parties agree to accept the exclusive jurisdiction of the state and federal courts located in New York, regardless of conflicts of law principles. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed. The parties hereto confirm that it is their wish that this Agreement as well as any other documents relating hereto, including notices, has been and shall be written in the English language. In any dispute between Licensor and Licensee for breach of this Agreement the prevailing party shall be entitled to recover its reasonable attorneys’ fees.
- Confidentiality: During this Agreement, one party (“Disclosing Party”) may provide the other (“Receiving Party”) with certain pricing, technical, marketing and other confidential information. The Receiving Party agrees to maintain the confidentiality of any Confidential Information shall not use or disclose the same without the prior written consent of Disclosing Party. “Confidential information” includes any information that is either designated as confidential by Disclosing Party or that, under the circumstances surrounding the disclosure, ought in good faith to be treated as confidential.
- Survival: Sections 1, 2, 3(a), 4-8, 11-15, and 16-22 shall survive termination or expiration of the Agreement.
- Miscellaneous: This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and merges all prior and contemporaneous communications. This Agreement shall not be modified except by a written agreement signed by duly authorized representatives of Licensor, provided that no purchase order or similar document issued by Licensee shall modify this Agreement even if signed by Licensor. If either party’s performance of any of its obligations hereunder is delayed by labor dispute, war, governmental action, acts of terrorism, flood, fire, explosion, other act of nature, the public enemy, or any other matter not within such party’s reasonable control, then the date for performance shall be extended by the time of such delay. If any provision of this Agreement is found invalid or unenforceable, the remainder of this Agreement shall remain valid and enforceable according to its terms. Accordingly, the parties agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable and in such manner as comes closest to the intentions of the parties to this Agreement as is possible. This Agreement will inure to the benefit of and be binding upon the parties, their successors and assigns, except that Licensee may not assign or transfer this Agreement without Licensor’s prior written consent.