RIGHTS-MANAGED LICENSE AGREEMENT
THIS IS A LEGAL AGREEMENT BETWEEN YOU (“LICENSEE”) AND INMAGINE (“INMAGINE”, or “LICENSOR”). BY ACCEPTING AND USING THE IMAGES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
1. DEFINITIONS
1.1 “Images” means all types of photographic images, digital images and all other visual images and shall include all metadata including keywords, descriptions and captions associated therewith.
1.2 “Invoice” means the agreement provided by Inmagine or an authorized distributor that includes among other terms, the permitted scope of use of the Images selected any limitations on the use of the Images and the licensee fee that corresponds to the use. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
2. GRANT OF RIGHTS
2.1 Limited Use License. Unless stated otherwise in the Invoice, Inmagine grants to Licensee a non-exclusive, non-sub-licensable and non-assignable right to reproduce, display, broadcast, transmit or create a derivative work (collectively “use”) the Images identified in the Invoice, solely to the extent the use is explicitly stated in the Agreement. If Licensee is obtaining rights on behalf of a client, it may permit the client to exercise the rights granted, provided the client or any subcontractor or employee agrees to uses the Image(s) as limited in the Invoice and agrees to be bound by the terms of the Agreement. Notwithstanding the foregoing, Licensee and client remain jointly and severally liable and responsible for all uses. No ownership or copyright in any Image(s) shall transfer to Licensee by the grant of the license contained in this Agreement or Invoice. All rights not expressly granted to the Licensee are reserved to Inmagine and the copyright holder.
3. PERMITTED USAGE
3.1 Licensee may alter, crop, modify or adapt the Images in connection with the permitted uses as specified in the Invoice. Licensee may make a back-up copy of the Image(s) for internal back-up purposes provided Inmagine's copyright and any image identifying information embedded with the digital file is retained with the file. Limited, temporary transfers of the Images are permitted to third parties integral to the creation of the final product, provided such third parties agree to abide by the terms of this Agreement.
4. RESTRICTIONS ON USE
4.1 The use of the licensed Image(s) is strictly limited to the use, medium, period of time, print run, placement, size of image, territory and any other restrictions specified in the Invoice. Licensee may not use nor permit the use of the licensed Image(s) beyond the terms of the limited license Agreement without first obtaining an additional license, including any electronic reproduction or promotional rights.
4.2 Licensee may not use any Image in a manner that is defamatory, pornographic or obscene, whether directly or in context or juxtaposition with specific subject matter.
4.3 Licensee may not incorporate the licensed Image in any logo, trademark or service mark.
4.4 Licensee may not archive, republish or transmit any images on any database or to a network or bulletin board or otherwise distribute or allow any of the Images to be distributed to or used by anyone other than the authorized users, without prior written consent from Inmagine.
4.5 Licensee may not use the Image(s) contrary to any restriction on use provided to Licensee prior to or at the time the Image is delivered to Licensee. Restrictions may be provided with the Image information located on Inmagine’s or any authorized distributor’s website or otherwise communicated.
4.6 Licensee may not use any of the Images in any manner prohibited by any export laws, restrictions or regulations.
5. NUMBER OF SALES / SEAT LICENSE
5.1 Licensee may store the Images on a server, image library or network configuration to be viewed by Licensee or its clients provided that no more than 8 persons can access the Images. Before permitting access to more than 8 persons, Licensee must upgrade the seat license from Inmagine.
6. PRODUCT ENDORSEMENT OR SENSITIVE USE DISCLAIMER
6.1 If any Image 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 Image is being used for illustrative purposes only. These requirements are without prejudice to the obligations of Inmagine regarding use of the Images contained elsewhere throughout this Agreement.
7. CREDIT LINE & EXTRA CHARGES
7.1 If any Image is used in an editorial manner, the credit line, “Inmagine”, must appear adjacent to the Image or as otherwise indicated by Inmagine. If Licensee omits the credit, an additional fee equal to two (2) times the original amount invoiced shall be payable by Licensee at Inmagine’s discretion. The foregoing fee shall be in addition to any other rights or remedies that Inmagine may have at law or in equity. It is understood that Images used for advertising purposes do not require credit.
8. ELECTRONIC STORAGE
8.1 For all Image(s) that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of Inmagine and the image number, all metadata or other identification number associated with the Image(s) may be included as part of the electronic file. Licensee will take all reasonable measures to safeguard against unauthorized third-party access to the Image(s). Licensee may make one (1) high-resolution backup copy of the Image(s) for security reasons only. Upon the expiration or earlier termination of this Agreement, Licensee shall promptly delete the Image(s) from its computer or other electronic storage systems and shall ensure that any client authorized to use the Images deletes the Image(s) as well.
9. WARRANTY AND DISCLAIMERS
9.1 Inmagine warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; and (ii) the Image(s) will be free from defects in material and workmanship for 30 days from delivery (Licensee's sole and exclusive remedy for a breach of this warranty being the replacement of the Image(s)).
10. RELEASE / CAPTIONS
10.1 Inmagine will notify Licensee if it has obtained a model release and/or a property release for Image(s), either in the release status information accompanying the Image(s) on Inmagine' website, in the Invoice or by other means. If no such notification is given, then no such model or property release has been obtained. Inmagine grants no rights and makes no warranties with regard to the use of names, people, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in any Image(s). Licensee shall be solely responsible for determining whether a release is sufficient for the proposed use or is required in connection with any proposed use of such Image(s). Licensee acknowledges that some jurisdictions provide legal protection against a person's image, likeness or property being used for commercial purposes without their consent. Inmagine used commercially reasonable efforts to identify the caption for each Image, but cannot be held responsible for erroneous or incomplete caption information.
11. GENERAL DISCLAIMERS AND LIMITATION OF LIABILITY:
11.1 Inmagine makes no other warranties, express or implied, regarding the images, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose. Inmagine shall not be liable to Licensee or any other person or entity for any general, punitive, special, indirect, consequential or incidental damages, or lost profits or any other damages, cost or losses arising out of Licensee's use of the images or otherwise, even if Inmagine has been advised of the possibility of such damages, costs or losses
11.2 Inmagine's maximum liability arising out of or in connection with Licensee's use of or inability to use the images (whether in contract, tort or otherwise) shall, to the extent premitted by law, be limited to the value of the license paid by the Licensee for the image(s).
11.3 the representations and the warranties made by Inmagine in this agreement apply only to the image(s) as delivered by Inmagine and will be invalid if the image(s) is used by Licensee in any manner not specifically authorized in this agreement or if Licensee is otherwise in breach of this agreement.
11.4 You may have additional rights under some state laws.
12. TERMINATION
12.1The license contained in this Agreement will terminate automatically without notice from Inmagine if Licensee fails to comply with any provision of this Agreement. Upon termination, Licensee must immediately (i) stop using the Image(s), (ii) destroy or, upon the request of Inmagine, return the Images to Inmagine, and (iii) delete or remove the Images from Licensee's premises, computer systems and storage (electronic or physical).
13. REVOCATION
13.1 Inmagine reserves the right to revoke the license to use any Image(s) for good cause and elect to replace such Image with an alternative Image. Upon notice of any revocation of a license for any Image(s), Licensee shall immediately cease using such Image (s), shall take all reasonable steps to discontinue use of the replaced Image(s) in products that already exist and shall inform all end-users and clients of same.
14. SEVERABILITY
14.1 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.
15. INDEMNITY
15.1 Licensee agrees to defend, indemnify and hold Inmagine and its parent, subsidiaries and affiliates and their respective officers, directors and employees harmless from all damages, liabilities and expenses (including reasonable attorneys' fees and costs), arising out of or as a result of claims by third parties relating to Licensee's use of any Image(s) outside the scope of this Agreement or any other breach by Licensee of this Agreement.
16. MICELLANEOUS
16.1 Jurisdiction and Attorney’s Fees: Any and all disputes, with the exception of copyright claims, arising out of, under or in connection with this Agreement, including, without limitation, the validity, interpretation, performance and breach hereof, shall be settled by arbitration in Houston, Texas pursuant to the rules of the American Arbitration Association. Judgment upon the award rendered may be entered in the highest court of the forum, State or Federal, having jurisdiction. This agreement, its validity and effect, shall be interpreted under and governed by the laws of the State of Texas Licensee is an agent for or an employee of a non-U.S. Company but operates in a place of business in the United States or its territories, expressly agrees that any dispute regarding this contract shall be adjudicated within the United States in the manner described here. Copyright claims shall be brought in the Federal Court having jurisdiction. Licensee agrees to be subject to the jurisdiction of the Federal Court of the Southern District of Texas located in Houston. If Inmagine is caused to present claims or suit as a result of any breach of the above terms set forth, it shall be made whole for such reasonable legal fees or costs by Licensee.
16.2 No Assignment: This agreement is not assignable or transferable on the part of Licensee.
16.3 No waiver: No action of Inmagine, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of Inmagine in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of those rights or remedies on any other occasion.
16.4 Entire Agreement: This Agreement and the Invoice contains all the terms of the agreement between Inmagine and Licensee and no term or conditions may be added or deleted unless made in writing and signed by both parties. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other writing sent by Licensee, the terms of this Agreement shall govern.
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