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Content license agreement
BY OBTAINING, USING OR PAYING FOR ANY CONTENT FROM THE ZENITH IMAGE LIBRARY YOU AGREE TO BE BOUND BY AND COMPLY WITH ALL OF THE TERMS OF THIS AGREEMENT. YOUR CONSENT IS FURTHER INDICATED BY TICKING THE ‘I ACCEPT’ BOX AT THE TIME OF PURCHASE OF THE CONTENT AND YOU SHOULD CAREFULLY READ THIS AGREEMENT BEFORE INDICATING SUCH ACCEPTANCE. IF YOU DO NOT AGREE WITH ANY OF THE APPLICABLE TERMS, DO NOT OBTAIN OR USE ANY CONTENT FROM THE ZENITH IMAGE LIBRARY.
THIS AGREEMENT INCORPORATES THE LICENSED USE FORM (THE ‘LICENSED USE FORM’) THAT YOU FILL IN ON THE ZENITH IMAGE LIBRARY WEBSITE WWW.ZENITHIMAGELIBRARY.COM (THE ‘ZENITH IMAGE LIBRARY’) AT THE TIME OF PURCHASE OF EACH CLIP AND STILL (THE ‘CONTENT’) WHICH INCLUDES THE STILL IMAGE SIZE AND USE CATEGORY OR CLIP MEDIA CATEGORY AS PURCHASED BY YOU (THE ‘END PRODUCT) AND DETAILS OF THE END USER (the ‘END USER’), THE ZENITH IMAGE LIBRARY REGISTRATION FORM FILLED IN BY YOU (THE ‘REGISTRATION FORM’), THE PRICES AS SHOWN AT CHECK OUT OR INVOICED BY US TO YOU , AS APPLICABLE, WHEN PAYING FOR THE CONTENT (THE ‘PURCHASE PRICE’), ANY RIGHTS RESTRICTIONS INDICATED IN THE ZENITH IMAGE LIBRARY OR BY WAY OF EMAIL OR IN WRITING IN RELATION TO ANY CONTENT (THE ‘RIGHTS RESTRICTIONS’), AND THE USER AND SUBSCRIBER AGREEMENT THAT APPLIES TO ALL USERS AND SUBSCRIBERS OF THIS WEBSITE. TOGETHER, THESE TERMS AND CONDITIONS, THE LICENSED USE FORM, THE SPECIFIED USE, THE REGISTRATION FORM, THE PURCHASE PRICE, AND THE RIGHTS RESTRICTIONS ARE REFERRED TO AS THE ‘LICENSE AGREEMENT/THIS AGREEMENT’.
1. The Parties
1.1 This Agreement constitutes a binding agreement between the registered purchaser (the ‘Purchaser/You’) of the Content and the licensors of the Content, Olive Entertainment Ltd of registered address 27A Powis Terrace, London W11 1JJ (the “Licensor”).
1.2 The Purchaser shall specify in the Licensed Use Form the name and contact details of the end user of the Content (the ‘End User’). Where the End User is different from the Purchaser, the Purchaser warrants and represents that he will ensure that the End User will be aware of and bound by this Agreement, and that the Purchaser shall be liable for any breaches by the End User in relation to this Agreement.
2. Rights Granted:
2.1 In consideration for receipt by the Licensor of payment in full of the Purchase Price (including any applicable disc burning and disc delivery costs), the Licensor hereby grants to the Purchaser/End User a license for use of the Content by the End User as specified in the Licensed Use Form for the End Product only and single outlet at its specified Purchase Price.
2.2 The Purchaser shall accurately describe the End Product in the Licensed Use Form and this shall not exceed one single end product such as one named magazine issue, one named advertising, one named url, or one named television programme or film.
2.3 The term, territory and media licensed to the Purchaser/End User are as indicated in the product category purchased by You unless terminated earlier for breach of the provisions of these terms and conditions (the ’Specified Use’).
2.4 You are authorised to use a copy image of the End Product that includes the Content for promotional purposes only where you are not charging for sale of such an item, such as in a review article or catalogue, at no extra charge. However, you are not authorised to re-use the Content itself for promotional purposes, including in a review article or catalogue, without further payment of the applicable fee for this as a new End Product.
2.5 For the avoidance of doubt:
- any use in electronic versions or published on any other product or medium than the single specified End Product has to be paid for additionally as a new single use.
- where use is required for multiple venues at the same time, please specify and the Content will be priced accordingly.
2.6 Many of the images on our website are sold as limited edition photographic artworks and we accordingly do not permit sales for the purpose creation of decorative posters or hanging or display images. This means that the use in any posters or image displays that are not advertising posters or display at a gallery as part of a limited time span exhibition is prohibited unless this is first cleared with us and the photographer. Please email us at info[@]zenithfoundation.com if you would like clearance for such use.
2.7 The rights granted under this Agreement are limited and are non-transferable and not capable of being sub-licensed. Only the End User, the End User’s employees and contractors (if any) may use the Content as necessary to create the End Product provided that each such employee or contractor has agreed to comply with the terms of this Agreement, and further provided that the Purchaser shall remain jointly and severally liable for any breach of the terms of this agreement by the End Users and any such employee(s) and/or contractor(s). Except as may otherwise be specifically stated herein, and except insofar as it has been incorporated by the Purchaser into the permitted End Product, you may not sell, rent, loan, give, sublicense or otherwise transfer to anyone the Content or any right to reproduce the Content or use the Content or any product other than the End Product.
2.8 Any unauthorised use will be invoiced at 100% of its applicable charges plus an administrative surcharge relating to administering the infringement, any legal costs will be charged to you, as well as interest at our prevalent bank rate at the time starting from your date of use until date of payment. This is without prejudice to any other rights we have at law or in contract to pursue infringements of our licence terms and of copyright and any other applicable rights.
3 Credit line and copyright notice: You shall include a copyright notice and credit adjacent to each Content or in credits of a programme or film in the format: “© rights owner’s name as indicated in the Zenith Image Library next to the Content or by written correspondence/Licensed by zenithimagelibrary.com”. Receiving credit is a material aspect of this Agreement and if, for any reason, you are unable to give such credit you need to clear this with us in writing before you are authorised to use the Content. Omission of the credit line will require immediate re-instatement whenever possible and will result in an additional charge of 30% of the applicable fee paid for the Content.
4. Ownership and intellectual property:
4.1 The Licensor and its Content sources retain all right, title, and interest in and to all of the copyrights, database rights, patent rights, trademarks and all other proprietary rights in the Content. No rights in any content are granted except the limited licence specified in this agreement. Any right, title or interest arising in any compilation or derivative work created using any Content shall not entitle the Purchaser or End User to use any content except as permitted hereunder. You do not acquire any copyright ownership or equivalent rights in or to any Content or any other property of the Licensor or its Content sources as a result of any license the Licensor grants to You.
4.2 The Purchaser and End User hereby allow the Licensor to use without charge the End Product in displays and presentations for the Licensor’s marketing purposes, solely to demonstrate how its Content is being used.
5. Warranties:
5.1 The Licensor warrants that:
i. It has the right to enter into this agreement;
ii. To its knowledge, it has obtained the necessary rights clearances to allow the Content, as provided hereunder, and when used as authorised in this agreement, to be used by the End User lawfully and without any further payments required.
5.2 In the event that the Purchaser and/or End User is not able to use the Content as a result of the Content not being of the technical specifications specified by the Licensor or due to any defects in the delivery (as download or disc), the Licensor shall provide the purchaser with replacement Content, or if the technical specifications of the Content cannot be brought up to the specified standard, may at its discretion offer the Purchaser replacement Content at the same cost as the original chosen Content. If the Purchaser turns down any replacement Content or the Licensor makes no replacement Content offer, the Licensor shall refund the Purchaser any fees actually paid by the Purchaser to the Licensor, Provided the Purchaser or End User have not made any use of the Content. This shall be the Purchaser and/or End User’s sole remedy in relation to any such defects.
5.3 The Licensor makes all reasonable efforts to use accurate caption information. However, the Licensor does not warrant that such information is accurate.
5.4 The Licensor provides the Purchaser and/or End User 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.
5.5 The Licensor warrants that it has obtained from its content sources copyright and other intellectual property rights clearances save where this is otherwise specified on the Zenith Image Library as a rights restriction. The Licensor otherwise makes no warranties, nor shall the Licensor be liable, for any claims related to or arising from use of Content by the Purchaser and or End User which:
i. has been modified by the Purchaser and/or End User;
ii. Has been combined by the Purchaser and/or End User with other content, products, text, content or materials.
5.6 The Licensor and its Content sources make no other conditions, terms or warranty, express, implied or statutory regarding any content, its online systems, or any rights or licenses under this Agreement.
6. Liability:
6.1 except for any liability which cannot by law be excluded or limited, neither the Licensor nor any Licensor subsidiary, successor, predecessor, parent, joint venture, affiliate, officer, director, employee, contractor, Content source, Licensor or Licensee shall be liable to the Purchaser or End User or any other third party claiming through them for (a) loss of profits, business opportunity, turnover, anticipated savings, or consequential damages or losses arising out of, or relating to this Agreement and/or use or inability to use the Content, whether framed as a breach of warranty of fitness for a particular purpose, in tort, contract, failure of essential purpose, or otherwise. In no event shall the Licensor or any of its subsidiaries, successors, predecessors, parents, joint ventures, affiliates, officers, directors, employees, contractors, Content sources, licensors, or licensees total aggregate liability to You or any third party claiming through You arising from this agreement, its termination or expiration, and/or Your use of any content provided hereunder, shall exceed the monetary amount actually received by the Licensor for the use of the applicable Content.
6.2 You agree to indemnify and hold harmless the Licensor and its Content sources, officers, directors, employees, contractors, subsidiaries, joint ventures, licensors and licensees against all claims (including, without limitation, claims by third parties), liability, damages, judgments, settlements, costs and expenses, including reasonable legal fees and expenses, arising out of or related to (i) Your or the End User’s breach of any terms, conditions or restrictions of this agreement (including any restrictions identified on the Zenith Image Library Website and by email communication), (ii) Your use or modification or combination of any Content.
7. Rights Restrictions Releases and Clearances: Content may contain restrictions specified on the Zenith Image Library or in this Agreement before or at the time of purchase, including, without limitation, restrictions as to time, manner, industry and territory of use, and/or require pre-approval by a third party. Your ability to access Content does not entitle you to use that Content outside of specified restriction and of the terms of this Agreement. You are 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 rights thereto. The Licensor reserves the right to notify you by email of any restrictions that were not included on the Zenith Image Library or this Agreement at the time of purchase and You and the End User shall abide by these restrictions. In the event that such restrictions prevent you from using the Content for your Specified Use, the provisions of Clause 4(b) shall apply in relation to Your rights for a replacement or a refund, and this shall be Your and the End User’s only remedy. In the event of any contradictions between the terms of this Agreement and the Rights Restrictions, the Rights Restrictions shall prevail.
8. Unauthorised uses: without limitation, Content may not be used as a trademark, or for any pornographic use, unlawful purpose, use that contravenes local and national laws and regulations in country where it is displayed, or to defame any person, or to violate any person’s right of privacy, publicity or moral rights, or to infringe upon any copyright, trade name or trademark of any person or entity. You do not acquire, and shall not claim, any rights (trademark, copyright or otherwise) in the Content itself apart from the End Product. Unauthorized use of Content constitutes infringement of copyright and other applicable rights and shall entitle the Licensor to exercise all rights and remedies under applicable copyright and other laws, including monetary damages against all users and beneficiaries of the use of such Content. As compensation for the Licensor’s costs in taking action against You in respect of any unauthorized use, the Licensor in its sole discretion reserves the right to bill you (and you hereby agree to pay) costs and damages as the Licensor may have suffered in relation to Your breach.
9. Payment/Reporting: You hereby agree to and are required to pay the Licensor for all Content that you obtain under the terms of this Agreement, regardless of whether you use the Content. The Licensor shall have the right to verify your use of the Content is in accordance with the information you have provided in the Licensed Use Form by requiring from You to submit accounting or other records verifying your use of the Content. In the event of you exceeding the End Product or End User uses, the Licensor shall have the right to invoice you for payment and you shall make payment for all uses made by you and to charge interest for late payment of such uses at the rate of 3% per annum. This shall be in addition to any other remedy available to the Licensor in contract or at law.
10. Taxes: you are responsible for the payment of all sales and use taxes, when applicable, and the Licensor shall be entitled to charge you VAT in addition to the purchase price of the Content.
11. Cancellation/Termination: the Licensor may, without further obligation or any liability to You, the End User or any other person or entity, terminate your license to use the Content by written notice in the event you fail to comply with any provision of this Agreement. Upon any termination, cancellation or expiration of this agreement, neither You, the End User nor any other person or entity covered by the license granted to you under this agreement shall have any further right to make any use of the Content or any end product that includes the Content. No refund will be due from the Licensor to you in the event of such termination.
12. End Product Copies: at the Licensor’s request, you shall provide to the Licensor free of charge with one (1) copy of any End Product made of the Content.
13. Storage of Content: in producing the End Product authorised hereunder, you shall limit access to the Content to those having a bona fide need to facilitate production or creation of any such authorised End Product. Upon termination and/or expiration of the term of this Agreement, you agree to cease use of all Content and shall promptly delete or destroy any digital copies, except that you may retain copies of permitted End Products incorporating the Content if their exploitation term remains ongoing and as necessary for archival purposes.
14. Protection of content: if use of Content is permitted on the internet, or any other online or interactive media, you shall use your best endeavours to protect the Content to ensure that it cannot be copied, and in the case of footage, ensure that it remains in the linear production for which it was licensed and cannot be searched by shot and downloaded in broadcast or substantially comparable quality outside the context of the End Product.
15. The Licensor’s trademarks: except for credits as may be required above, you may not use the trademarks or service marks of the Licensor without the Licensor’s prior written consent.
16. Confidentiality: during the term of this Agreement, the Licensor may provide You with certain pricing, technical, marketing and other confidential information. You acknowledge that such confidential information encompasses valuable trade secrets and is proprietary to the Licensor. You agree that you will maintain the confidentiality of any “confidential information” that the Licensor may provide to you, and you shall not use or disclose the same without the prior written consent of the Licensor. “Confidential Information” includes any information that is either designated as confidential by the Licensor or that, under the circumstances surrounding the disclosure, ought in good faith to be treated as confidential by You.
17. Miscellaneous: this Agreement and any restrictions or price corrections communicated to You by way of email constitute the entire agreement between the parties with respect to the subject matter hereof. This agreement shall not be modified except by a written agreement signed by duly authorised representatives of the Licensor, provided that no purchase order or similar document issued by you shall modify this Agreement even if signed by the Licensor. If the Licensors’ performance of any of its obligations hereunder is delayed by labour dispute, war, governmental action, acts of terrorism, flood, fire, explosion, other act of nature, online viruses or system crashes, or any other matter not within the Licensors’ 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 You may not assign or transfer this agreement without the Licensors’ prior written consent. No term of this agreement is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this agreement save as specified in this Agreement in relation to the End User.
18. Choice of law / jurisdiction this agreement shall be governed by and construed in accordance with English law and each party hereby submits to the non-exclusive jurisdiction of the English courts.
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